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SEVEY v. KNOWLES

United States District Court, Northern District of California


April 8, 2003

ANDREW SEVEY, PETITIONER,
v.
KNOWLES, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Andrew Sevey is a California prisoner proceeding pro se, who filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After an initial review, the Court ordered respondent to show cause why the petition should not be granted based on petitioner's three claims. Respondent has filed an answer, along with a memorandum and exhibits. Petitioner has filed a traverse.*fn1

FACTUAL*fn2 AND PROCEDURAL BACKGROUND

Heather Argyle-Johnson ("Johnson") testified that she lived in a mobile home in Upper Lake, California, which was on the same property as Hartford Horace "Johnny" Gwinn's ("Gwinn") trailer and Don Wilshire's ("Wilshire") cabin. Johnson testified that it was well-known that Gwinn carried a lot of cash from his burl business and from selling methamphetamine.*fn3 Johnson testified that when she arrived home shortly after 2:30 p.m. on April 26, 1995, Wilshire and Cherish Oranje ("Oranje") told her that Gwinn was dead. Johnson found Gwinn's body on the floor of his trailer. She removed a towel from his throat to find that his neck had been cut. She called 911 and emergency personnel, including Deputy Shemff Carl Stein ("Stein"), arrived.

Stein testified there were signs of a struggle inside the trailer. In particular, there was broken furniture; items were scattered on the floor; there were blood splatters; a small dishpan was sitting on top of a water-soaked couch cushion; a piece of cloth had been used to wipe up water from the floor; there were random dots of blood on the kitchen drawers and oven door; there was an arc of blood consistent with a bleeding artery near the couch; and there was blood on the counter and a large area of blood on the back and seat cushions of the couch. Gwinn was lying on his right side on the floor. A paring knife and a pocket torn from a blue and white flannel shirt were under Gwinn's body. His clothing was saturated with blood and water, and there was a large pool of blood and a blood-soaked towel near the body. Methamphetamine was found on Gwinn's bed and in his shirt pocket. No wallet, money or credit cards were found in the trailer.

The pathologist who performed the autopsy testified that Gwinn, who was approximately 5'10" and weighed 170 pounds, had at least thirteen stab wounds, including several to the chest, sides of the head, and left neck, as well as two defensive wounds on his right hand. One of the defensive wounds could have been sustained while the deceased was trying to take a knife away from someone. The wounds could have been inflicted by the paring knife found under Gwinn's body. Gwinn died of the stab wounds and blood loss. He had methamphetamine in his system.

Mike Wagy ("Wagy") testified that he lived in Lake County in 1995 and occasionally worked for Gwinn's burl business. Wagy has a felony conviction for possession of methamphetamine. Between noon and 1:00 p.m. on April 26, 1995, Wagy and his girlfriend Evelyn Dunaway ("Dunaway"), drove Fred Pearl ("Pearl") and Orange to Gwinn's trailer. "One-eyed Eddie" Steiner ("Steiner") was outside the trailer working on Gwinn's truck. Pearl went into the trailer and discussed a drug transaction with Gwinn. When he came out he told Wagy that he had given Gwinn some money. At some point, Dunaway, Pearl, Gwinn, and Oranje all used methamphetamine. Wagy also went inside the trailer briefly. While he was in the trailer, he saw some binoculars and a cross-bow belonging to him. Wagy asked Gwinn about them and also about a scanner that he wanted. Gwinn told Wagy to come back in an hour to discuss them. Pearl, Wagy and Dunaway left after about 45 minutes, after which they visited David Tinney ("Tinney") and Robert Vinson ("Vinson"). Vinson told Pearl and Wagy that his scanner had been stolen. Wagy told him he had seen the scanner in Gwinn's trailer; Wagy offered to ask Gwinn about it. Dunaway went to pick up her daughter. When Dunaway returned, she went with Wagy and Pearl back to Gwinn's trailer. On the way, they saw Chastain's truck near Gwinn's trailer. When they got to the trailer, there were no cars around and the trailer door was open. Pearl found an empty wallet on the ground and tossed it to Wagy and Dunaway. Pearl went into the trailer and called to Wagy that Gwinn was on the floor bleeding. Wagy and Dunaway went to the trailer and Wagy went inside. He found no pulse on Gwinn and the two returned to the car, with Wagy taking his binoculars and cross-bow and Vinson's scanner. Pearl then returned to the car carrying a grinder he said belonged to him.

Wagy testified that he, Dunaway and Pearl drove away, stopping at Wilshire's cabin to tell him that Gwinn was dead. Wilshire said he would take care of the problem, and the group drove on to Vinson's residence where Wagy gave him the scanner. They did not call the police because Wagy was in violation of his parole. When he learned that his car was the last one seen leaving the trailer, he drove the car to petitioner's house and covered it with a tarp; he retrieved it later that night. Wagy kept Gwinn's wallet, and was carrying it when he and Dunaway were arrested three days later. Steiner testified that he was at the trailer when Wagy and the others arrived the first time. Steiner did odd jobs for Gwinn, and had arrived at Gwinn's trailer between 9:00 and 9:30 that morning. While Steiner worked on Gwinn's truck over the next couple of hours, between 25 and 30 people came to the trailer to purchase drugs from Gwinn. Between 2:00 and 2:30 p.m., petitioner arrived with Bobby DeSoto ("DeSoto") and Bobby Chastain ("Chastain") in Chastain's truck. Petitioner was wearing a plaid shirt and black boots. He went inside the trailer while DeSoto and Chastain remained outside with Steiner. After a short time, Steiner heard a "ruckus" inside the trailer and went inside. He saw petitioner bent over Gwinn swinging a knife around. The knife was dripping blood, and Gwinn was on his back on the sofa trying to block the blows. Gwinn did not have any weapons in his hands; his head was cocked back and he was "kind of gurgling." When Steiner grabbed petitioner's wrists, petitioner spun around and looked at Steiner. Steiner saw blood on petitioner's arms and shirt and ran out the door, telling DeSoto and Chastain, who were outside, that he was leaving. He drove off and did not call the police because he was afraid of petitioner.

Chastain testified that he was at Pearl's house on the morning of the killing, and that at about 10:00 or 11:00 a.m., petitioner came over and asked Chastain to help him with some burls. He agreed and they drove to petitioner's house where they shared some methamphetamine with petitioner's girlfriend Tina Hockett ("Hockett"). Petitioner was wearing jeans, black boots and a blue and white checkered shirt. Chastain and petitioner drove to a ranch to get some burls, picking up DeSoto on the way. The job fell through, so the three of them went to Gwinn's trailer to buy drugs. Petitioner told Chastain that he would kill Gwinn if Gwinn did not give them drugs, but Chastain did not take him seriously. Chastain, DeSoto and petitioner arrived at Gwinn's house between 1:30 and 1:45 p.m. and found Steiner working on Gwinn's truck. Chastain went into the trailer to buy drugs, but Gwinn told him he did not have any. Petitioner then came into the trailer and asked to buy a half ounce of methamphetamine for $350. Gwinn told petitioner it cost more than that. Chastain left the trailer and stood next to DeSoto. A couple of minutes later he heard the sound of someone hitting the floor. Steiner ran inside the trailer. After thirty seconds, he came out and drove away. Chastain heard Gwinn make a noise that he likened to the sound a pig makes after its throat is slit. Chastain looked into the window of the trailer and saw petitioner hunched over and straddling Gwinn on the couch. Petitioner was stabbing Gwinn's lower left back. Gwinn had no weapon. Chastain and DeSoto got into Chastain's truck. Petitioner came out and asked for help cleaning up. He had blood on his hands and face. Chastain refused and drove away.

DeSoto's preliminary hearing testimony was read to the jury.*fn4 He had prior convictions for assault, burglary, spousal battery and false imprisonment. DeSoto had worked for Gwinn and had bought methamphetamine from him. DeSoto testified that petitioner and Chastain picked him up around 10:30 a.m. on the day of the killing. Petitioner was wearing jeans, sneakers and a flannel shirt. They drove to a ranch, but the burl work fell through, so they decided to buy drugs from Gwinn. DeSoto gave petitioner $40 for the drugs. When they arrived at Gwinn's property, DeSoto, Chastain and petitioner all got out of petitioner's truck, at which time DeSoto saw Gwinn and Steiner, who was working on Gwinn's truck. DeSoto went over to help Steiner with the truck, and petitioner and Chastain went into the trailer with Gwinn. Chastain came out a few minutes later, and shortly thereafter DeSoto heard a fight inside the trailer. Steiner went to the door of the trailer and looked inside. Steiner backed out of the trailer, jumped in his truck and drove away. Chastain was standing near a window of the trailer. DeSoto looked into the doorway of the trailer and saw Gwinn on the floor lying on his right side. Petitioner was crouched over Gwinn with a bloody knife in his hand. DeSoto did not see any weapon in Gwinn's hands. Petitioner was covered in blood and looked "kind of crazy." DeSoto backed away from the trailer and he and Chastain drove away. After traveling a short distance, they stopped along the road and started to run back to see what had happened to Gwinn. When they got to a creek bed, they stopped and decided to return to the truck, after which they drove off.

Pamela Woodward ("Woodward") testified that on the afternoon of the murder she was waiting for her boyfriend on a road near Gwinn's trailer when petitioner ran out from the bushes wearing a long-sleeved camouflage shirt and jeans and carrying two T-shirts. Petitioner asked her for a ride and she drove him to Tinney's house. Petitioner kept telling her to drive faster and told her not to go back to Gwinn's house. John Carr ("Carr") was at Tinney's house. Carr testified that petitioner was shirtless, aggravated, "very hyper," sweaty and dirty. Petitioner told some people who were there to wash him off with a five-gallon bottle of water. Carr did not see any blood or injuries on petitioner. Petitioner left in a pickup truck with Rick Roberts ("Roberts") and Thurman Mahan ("Mahan"). Roberts and Mahan returned a few minutes later without petitioner, and one of them dropped a bundle of clothing on the ground containing a bloody blue and tan flannel shirt. One of them said, "The crazy son of a bitch just killed Johnny." They went over to a nearby orchard and burned the clothing.

Larry Rogers ("Rogers") lived near Tinney. Rogers testified that he noticed petitioner running around outside his home without a shirt, shoes or socks. Petitioner asked him for a ride to Mike Moitozo's ("Moitozo") shop and Rogers drove him there. Moitozo testified that when petitioner arrived at the shop, he asked for a ride into town. Petitioner's hair was soaking wet, his legs were bleeding from some small scratches, and he was not wearing a shirt. Moitozo did not notice any injuries on petitioner's chest or arms. Petitioner called Judy Stark ("Stark"), the mother of his ex-girlfriend. Stark testified that she picked up petitioner and he seemed to be in a rush. He looked a little rough and dirty and had a scratch on his shoulder. Petitioner had a roll of cash and a plastic baggy of methamphetamine. He asked her for a ride to a casino. She refused, but she drove him to Scott Elliott's ("Elliott") house, where they took methamphetamine. Pat Hanson ("Hanson") arrived and petitioner gave him five one hundred dollar bills to buy petitioner a car. Petitioner also asked Hanson to pick up Hockett and give her some of petitioner's money for groceries. Stark testified that after giving Hanson the money, petitioner still had a roll of cash in his hand.

Charles Becker testified that Hanson, Hockett and Hockett's daughter came over that day, Hockett gave him $500 for a 1976 Mercury Monarch and they drove off in the Monarch to Joe Queen's ("Queen") house. Richard Smith ("Smith"), who was at Elliott's house, testified that he gave petitioner a ride to Queen's house, where he was to meet Hockett. Petitioner had a roll of cash with him, a scratch on his arm, and was wearing tennis shoes, jeans and a t-shirt. Queen testified that petitioner gave him $100 in cash and packed the Mercury with sleeping bags. Petitioner shared some methamphetamine with the others, and told them he had gotten it from Stark. Petitioner gave Hockett money for gas and told her to meet him at a highway intersection. Smith testified that he drove petitioner to the intersection separately, and that petitioner said that if they were stopped by the police, Smith should say that petitioner held a gun to his head.

Hockett testified that she and petitioner left Lake County for the Bay Area in the Mercury. She estimated that they spent about one thousand dollars on gas, food, motels and restaurants between the time they left and petitioner's arrest on May 5, 1995, with petitioner paying from a roll of cash he carried. In the days before they left, petitioner did not have any money, and they had to borrow $275 to pay the rent. On the morning of the killing, Hockett had given petitioner a few dollars and some food stamps to buy food for Hockett's daughter. Petitioner told her that it was a good time to leave so they would not be in the middle of Gwinn's killing. He explained that he had been down the road from Gwinn's property working on burls when Gwinn was killed. The only injury Hockett saw was a mark on petitioner's chest that was scabbed over.

Deputy Stein testified that a search of the orchard near Tinney's house about a month after the killing turned up the burned remnants of a shoe, rivets and buttons from a pair of Levis, and another shoe nearby that was petitioner's size and which Hockett identified as belonging to petitioner. Some of the burned material matched the shirt pocket found under Gwinn's body.

Elliott testified that he was approached by defense investigator David Ell ("Ell") on two occasions, and that Ell told him that petitioner had stated that Elliott had loaned him $700. Elliott testified that he had only seen petitioner on two occasions, that he did not lend petitioner any money, and that he was down to his last $35 on the day of the killing. Stark, Elliott's girlfriend, confirmed that Elliot did not have any money to lend, and Patches Stroud ("Stroud") testified that she had loaned Elliott $20 for car parts around the time in question.

Petitioner testified that on the afternoon of April 26, 1995, he drove to Gwinn's house with Chastain and DeSoto to talk to Gwinn about Gwinn's accusations concerning petitioner's former girlfriend, Marla Howard. Petitioner went into the trailer alone and got into a heated argument with Gwinn, which escalated into a physical confrontation. Steiner entered the trailer in a few seconds and grabbed petitioner's shoulder, while Gwinn stepped forward. Petitioner pushed Gwinn away, but Gwinn picked up a knife and Steiner grabbed both of petitioner's arms. Gwinn was "very angry" and thrust a knife into petitioner's chest. Petitioner grabbed Gwinn's forearm as Gwinn tried to stab him in the side, and Gwinn bit petitioner's chest. Petitioner thought that Gwinn and Steiner were going to kill him. Petitioner punched Gwinn in the face and eventually wrestled the knife away. Gwinn bit petitioner on the biceps and petitioner struck him on the back, and then stabbed Gwinn in the back of the head a few times until Gwinn started to fall down. Petitioner fell on top of Gwinn because he knew Gwinn carried a gun, and Steiner, who had been trying to grab petitioner's arms, ran off. Gwinn was on his back bleeding profusely from his neck. Petitioner wiped his hands on a towel and ran into the hills. Petitioner testified that he did not intend to kill Gwinn or to take his money or drugs, and that he never threatened to harm Gwinn if he didn't give petitioner drugs. He denied taking Gwinn's wallet.

Petitioner further testified that he went to Elliott's house, getting rides from Woodward, Roberts, Mahan, and Stark. He discarded his clothes and shoes along the way because they were covered with blood; he was not bleeding a lot because he had packed his wounds with dirt. He borrowed $700 and clothing from Elliott, using $500 to buy a car and $100 to pay off a loan to Queen. Stark gave him some methamphetamine. Petitioner traveled to San Jose with Hockett because he was scared of what he had done. Petitioner acknowledged that it was well-known that Gwinn had a lot of cash and methamphetamine. He recalled inflicting only three to six stab wounds on Gwinn, who was on his back, not his right side, when petitioner left. Petitioner admitted to prior convictions for possession of a firearm by a felon and for theft. He acknowledged that he changed his story to the police several times.

Deputy Stein testified that on May 7, 1995, petitioner told him that he had heard that Gwinn had been shot and that Wagy, DeSoto and Chastain were involved. Petitioner said that he had heard them talking about taking Gwinn's things and running him out of town. The next day, petitioner told the police that he was cutting burls with Roberts and Mahan near Gwinn's house when Wagy drove up and said that he had just killed Gwinn. Petitioner ran away and got several rides before calling Stark. He eventually got a ride from Smith to Queen's house; he told Smith he had to leave town because he had walked into some trouble. Finally, petitioner gave two written statements. He admitted stabbing Gwinn during a struggle with Gwinn and Steiner, but stated that he did not mean to kill him. He denied giving money to Hockett to buy a car, but admitted giving $300 to Hanson. He stated that Queen and a friend in San Jose had loaned him money, and that he had money from some prior paychecks. He admitted that he had discarded his clothing at the creek after leaving Tinney's house, but stated he did not know how the clothes got burned.

On January 17, 1996, the jury found petitioner guilty of first degree murder, with the special circumstance that the murder was committed in the course of a robbery. The trial court sentenced petitioner to life in prison without the possibility of parole. The sentence included an enhancement for use of a deadly weapon, as well as for prior convictions, service of prison terms and violation of parole. The California Court of Appeal affirmed the conviction, and the Supreme Court of California denied a petition for direct review and a subsequent petition for a writ of habeas corpus.

DISCUSSION

A. Standard of Review

This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a); Rose v. Hodges, 423 U.S. 19, 21 (1975).

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). Habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict."` Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254 (e)(1).

B. Legal Claims

1. Ineffective Assistance of Counsel

Petitioner alleges numerous claims based on ineffective assistance of his trial counsel, Robert Wiley ("Wiley"), the Lake County Public Defender. A violation of the Sixth Amendment right to counsel based on trial counsel's ineffectiveness requires a showing that counsel's performance was both deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 686-93 (1984). In assessing counsel's performance, the relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Where there are indicia of tactical reflection on the issue by counsel, judicial scrutiny of counsel's performance is deferential, with a presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See United States v. Palomba, 31 F.3d 1456, 1466 (9th Cir. 1994); see also Strickland, 466 U.S. at 689. Prejudice exists if there is a reasonable probability, in other words a probability sufficient to undermine confidence in the trial's outcome, that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694.

During trial, petitioner made a motion for a new attorney, which the trial court denied without prejudice after an in camera hearing. Earlier, petitioner had made a motion to represent himself, which he subsequently withdrew. Following the verdict, petitioner made a motion for new trial on the grounds that he was denied effective assistance of trial counsel, which motion included many of the claims raised here. A lengthy evidentiary hearing was held on the motion, for which the trial court appointed new counsel, Judy Conard, to represent petitioner.

a. McKelvies' Evidence

Petitioner claims that Wiley was ineffective in failing to secure the testimony of Gerald and Robin McKelvie ("the McKelvies"). The McKelvies were interviewed by defense investigator Ell, but Wiley did not call them to testify. Robin McKelvie ("Robin") told Ell that three days before Gwinn was killed, Chastain and DeSoto were at her house and she overheard them discussing killing Gwinn. She also heard them talking about robbing Gwinn for his drugs and reputed suitcases full of money. When they came over to her house after Gwinn was killed, she overheard them say "the guy was done in," and they tried to sell her some gold coins. Gerald McKelvie ("Gerald"), Robin's father, told Ell that he heard Pearl tell DeSoto that he had stabbed Gwinn, and also that he heard Chastain talking about wanting burls, money and drugs from Gwinn. Gerald also said that the morning after the killing, DeSoto and Chastain came to his house with guns, valuable coins, and jewelry that they wanted to sell; that DeSoto said he had a briefcase with drugs and money in it; and that Chastain said he had Gwinn's wallet.

The failure to present this evidence was not prejudicial as to the outcome of the trial. This evidence might have been helpful to petitioner if his defense had been one of identity and he was trying to show that it was Pearl, DeSoto or Chastain who had killed Gwinn. This, however, was not petitioner's defense. Petitioner admitted to having stabbed and killed Gwinn. His defense was self-defense. The McKelvies's statements do nothing to bolster petitioner's self-defense argument. Any evidence that DeSoto and Chastain robbed Gwinn, or that Pearl stabbed Gwinn, would not render petitioner's killing Gwinn an act of self-defense. Moreover, the testimony by the McKelvies is inconsistent in that Robin's testimony suggests that it was DeSoto and Chastain who killed Gwinn, whereas Gerald's suggests that Pearl was the killer. Because of this inconsistency, it is unlikely that the jury would have believed the McKelvies, given petitioner's own damaging admission that he was the one who stabbed and killed Gwinn. It is also unlikely that the McKelvies would have impeached Chastain and DeSoto, each of whose testimony was consistent with the other's testimony as well as with that of Steiner. Because of the weaknesses in the McKelvies' testimony, and the fact that it was irrelevant to petitioner's defense, no reasonable probability exists that the outcome of the trial would have been different if the MeKelvies had testified.

b. Wofford's Evidence

Petitioner claims that Wiley was ineffective in failing to secure the testimony of Robert Wofford ("Wofford") to impeach Chastain. Chastain testified that he heard petitioner threaten to kill Gwinn if they could not get drugs from him, that he looked into the window of the trailer and saw petitioner stab Gwinn in the lower back, and that Gwinn did not have a weapon. At the hearing on the motion for a new trial, Wofford testified that he was a friend of Chastain's and that they had spoken before petitioner's trial began. According to Wofford, Chastain wondered how he could change the statement he had made to the police because he had in fact left the trailer area with DeSoto without ever looking inside. At the hearing on the motion for new trial, Chastain denied making that statement to Wofford. He testified that he had only seen Wofford on two occasions in his life, once seven or eight years earlier, and once in September 1995. He testified that he told the police the truth, that he never told anyone that he had lied about the incident, and he never discussed petitioner or the incident with Wofford.

Petitioner cannot establish prejudice from the absence of Wofford's testimony because Wofford lacked credibility. Wofford was a friend of petitioner and was confined with petitioner in the same cell block in the county jail. Wofford had numerous prior felony convictions, including convictions for assault, kidnap and burglary. While in jail, Wofford had read documents concerning petitioner's trial, including the police reports of witnesses' statements. In addition, Wofford purportedly had heard the statements by Chastain in the fall of 1995, when he was out of jail, but did not volunteer them to authorities until after he had been arrested, incarcerated with petitioner, and read documents concerning petitioner's trial. Under such circumstances, no reasonable likelihood exists that the jury would have found Wofford more credible than Chastain, whose testimony was largely corroborated by DeSoto and Steiner. Moreover, even if Wofford were believed, he would not have contradicted Chastain's testimony that petitioner had stated he was going to kill Gwinn if they failed to obtain drugs, which testimony was particularly damaging in that it established petitioner's motive for robbing and killing Gwinn.

Because Wofford lacked credibility, and his testimony, if believed, would not have contradicted a critical and damaging aspect of Chastain's testimony, there is no reasonable probability that the outcome of the trial would have been different if Wofford had testified. Accordingly, petitioner was not prejudiced by Wiley's failure to secure Wofford's testimony.

c. Robey's Evidence and DeSoto's Testimony

Petitioner claims that Wiley was ineffective in failing to present the testimony of Lawrence Robey ("Robey"), a volunteer chaplain at the county jail. Robey told Wiley that DeSoto had approached him and stated he wanted to change his preliminary hearing testimony. DeSoto had testified that he looked into the trailer and saw petitioner on top of Gwinn with a knife. According to Robey, DeSoto wanted to change his testimony to say that he never looked into the trailer.

The record does not establish that Wiley's performance was deficient with respect to DeSoto's testimony. After hearing from Robey, Wiley, to avoid any threat to DeSoto's attorney-client privilege, contacted DeSoto's counsel, Arlene Russo ("Russo"). In response to Wiley's inquiry, Russo sent a memorandum, explaining that DeSoto did not want to retract any part of his preliminary hearing testimony and that Robey was "full of shit." In light of this response, it was reasonable for Wiley to have concluded that Robey was wrong about DeSoto's desire to change his testimony and that if Robey were called as a witness, DeSoto would simply deny having made the statement to Robey and reiterate his damaging testimony from the preliminary hearing. Moreover, the record shows that Robey's testimony as to any desire by DeSoto to retract his testimony would not have made a difference in the outcome of the trial. Petitioner admitted to fighting, stabbing and killing Gwinn. DeSoto's testimony at the preliminary hearing was consistent with this admission, and with the testimony of Chastain and Steiner. Even if DeSoto had wanted to retract his testimony that he saw petitioner and Gwinn in a fight, it is highly likely that the jury nonetheless would have found the fight took place, based on petitioner's own admission and the testimony of Chastain and Steiner. In sum, the record does not show that Wiley acted unreasonably or that petitioner was prejudiced by the failure to present Robey's testimony to impeach DeSoto.

Petitioner also claims that Wiley should have investigated further a statement by DeSoto, relayed in Russo's memorandum, that Gwinn seemed angry when DeSoto arrived at the trailer. "The duty to investigate and prepare a defense is not limitless; it does not necessarily require that every conceivable witness be interviewed." United States v. Tucker, 716 F.2d 576, 584 (9th Cir. 1983). Under the circumstances presented here, there was no unreasonable failure to investigate. That Gwinn was angry about something when DeSoto and petitioner arrived at the property does not indicate he was angry at petitioner, much less that he was so angry that he attacked petitioner. In any case, the benefit to petitioner of any further investigation is purely speculative. Petitioner does not allege or otherwise indicate what Wiley would have found if he had investigated further, let alone that he would have found any evidence indicating that Gwinn was angry at petitioner or so angry that he would have attacked petitioner as petitioner claimed. The Court cannot find a reasonable likelihood that the outcome of the trial would have been different had Wiley conducted the investigation because there is no allegation or indication as to what such an investigation would have produced or how it would have been beneficial to petitioner. In sum, the record does not establish that Wiley acted unreasonably or that petitioner was prejudiced by Wiley's failure to further investigate the reference to Gwinn's anger.

d. Steiner's Testimony

Petitioner contends that Wiley should have further investigated evidence to impeach Steiner's testimony. Steiner testified at trial that he was outside the trailer with Chastain and DeSoto when he heard the sound of a struggle and that he ran into the trailer and saw petitioner bent over Gwinn with a bloody knife in his hand and Gwinn unarmed, gurgling, and trying to block petitioner's swings. Steiner further testified that he grabbed petitioner and when petitioner spun around with the knife, Steiner ran. After Steiner testified, Wiley contacted Russo, who was also Pearl's attorney. Russo provided Wiley with a memorandum detailing her interview of Pearl. In the memorandum, Pearl is described as stating that Steiner told him that Gwinn had a knife in his hand and was trying to stab petitioner. Petitioner contends that Wiley should have investigated Pearl's remarks further by interviewing Pearl, or that he at least should have recalled Steiner and questioned him about Pearl's statements.

Wiley did not act unreasonably in failing to examine Pearl. Wiley attempted to interview Pearl by contacting Pearl's attorney. Instead of granting Wiley an interview, Pearl had his attorney send Wiley a memorandum. Even if Pearl had consented to an interview with Wiley, there is no reasonable probability that Wiley could have used Pearl to impeach Steiner. At the hearing on the motion for new trial, Pearl invoked his Fifth Amendment right to remain silent and refused to testify. Wiley also acted reasonably in not recalling Steiner, in light of the very real risk that Steiner would have reiterated his testimony that Gwinn was unarmed, testimony that was damaging to petitioner's claim of self-defense.

Petitioner also contends that Wiley was ineffective in failing to investigate whether Steiner had sustained prior convictions under the alias Edmund Allen Taylor. It does not appear from the record, however, that any such convictions existed. Petitioner cites to a "rap sheet" under the Taylor alias. Petitioner, however, does not dispute the California Court of Appeal's finding that this rap sheet shows only that Steiner was arrested, not convicted, under that name.*fn5 Under California law, only convictions are admissible for impeachment. See Cal. Evid. Code § 788. In any event, Steiner's testimony was largely duplicative of Chastain's and DeSoto's testimony that petitioner stabbed and killed Gwinn without any need for self-defense. Even if Wiley had been able to locate and introduce evidence of a prior conviction, no reasonable likelihood exists that, as a result, the jury would have found petitioner did not kill Gwinn, or that the jury would have believed petitioner's testimony that Gwinn attacked him. Accordingly, the record indicates that petitioner was not prejudiced by any failure to investigate whether Steiner had any prior convictions under his alias.

e. Bite Marks

Petitioner also claims that counsel was ineffective in failing to present evidence of bite marks on his biceps to bolster his claim of self-defense. Ell, Wiley's investigator, saw a yellow-brown bruise on petitioner's left biceps when he interviewed petitioner in jail five to six months after the incident. At about the same time, Ell interviewed Willy Baker, an inmate at the jail, who also saw the bruise. Approximately two months thereafter, Wiley himself saw a bruise. Wiley's decision not to present the evidence of the bruise was reasonable because the evidence was weak. At the hearing on the motion for new trial, a doctor testified that a bruise from a bite would last no more than three months, and while a scar could last longer, it would not be the color of the bruise described by Ell.

In addition, none of the witnesses who saw petitioner shirtless on the day of the incident testified that they saw any bite marks or bruises on his biceps. Finally, evidence that Gwinn bit petitioner may well have indicated to the jury that Gwinn was not in fact armed and thus resorted to biting. In any event, Gwinn's biting petitioner is no more indicative that Gwinn attacked petitioner than it is an indication that Gwinn was defending himself from petitioner's attack. Wiley acted reasonably, and did not provide ineffective assistance to petitioner, in not presenting evidence of bite marks on petitioner's biceps.

f. Gwinn's Priors and Gun

Petitioner claims that Wiley was ineffective in failing to conduct an investigation into Gwinn's violent character.*fn6 According to petitioner, Wiley would have discovered evidence that Gwinn was arrested in 1992 for assault with a deadly weapon. The police report of the 1992 arrest indicates, however, that Gwinn was not involved in any violent conduct during the incident in question, a fight between two other men over a woman. Gwinn was never charged or convicted of assault or any other offense associated with the incident. This arrest is weak, if any, evidence of a violent character.

Petitioner also contends that Wiley would have discovered evidence, offered at the new trial hearing, that Ronald Colson ("Colson") had seen Gwinn carry a gun. The evidence that Gwinn had a gun would have been of only minimal value to petitioner. Petitioner's defense was not that Gwinn assaulted him with a gun, but with a knife. Colson testified that he had never seen Gwinn with a knife. If Wiley had discovered and presented Colson's testimony about the gun, the jury also would have heard his testimony that he had never seen Gwinn with a knife. This would not have benefitted, but rather contradicted, petitioner's claim of self-defense. Nor does evidence that Gwinn owned a gun necessarily suggest that Gwinn had a violent character. The jury reasonably could have inferred that Gwinn possessed the gun for self-protection, as there is no indication that Gwinn had ever used or threatened to use a gun against anyone, let alone that he had a gun at the time he was killed.

Finally, the jury had already learned that Gwinn was the primary drug dealer in Upper Lake County. To the extent any inference of a violent character might be drawn, there is a reasonable likelihood that the jury already would have done so based on a recognition of the violence commonly associated with the drug trade. Evidence that Gwinn was present at a barroom brawl three years earlier or had in the past possessed a gun is unlikely to have changed the jurors' assessment of Gwinn's character.

Consequently, there is no reasonable likelihood that further investigation of Gwinn's character would have made a difference in the outcome of petitioner's trial.

g. Vinson's Testimony

Petitioner claims that Wiley provided ineffective assistance by failing to present the testimony of Robert Vinson ("Vinson"). Vinson testified at the hearing on the motion for new trial that his scanner had been stolen on the day of the incident and that Wagy offered to retrieve it for him. Vinson further testified that when Wagy returned with the scanner, he was "really hyper," in a hurry, with his shirt untucked, and that he told Vinson he "had to go to the trouble of getting it from the people that had it." Wiley reasonably could have determined that calling Vinson as a witness would be of little, if any, benefit in light of Wagy's own testimony at trial. As noted, Wagy testified that he went to Gwinn's trailer, found Gwinn dead, and then took some things from the trailer, including the scanner. Moreover, petitioner was not prejudiced by the failure to present Vinson's testimony. Petitioner appears to argue that Vinson's testimony might have persuaded the jury that Wagy killed Gwinn after petitioner fled. The jury rejected this theory, however, after hearing Wagy himself admit to going to the trailer and taking various items from Gwinn. There is no reasonable probability that Vinson's testimony, which adds little, if anything, to the testimony the jury already had heard from Wagy, would persuade the jury otherwise. Accordingly, the failure to present Vinson's testimony was neither deficient performance nor prejudicial to petitioner.

h. Oranje's Evidence

Petitioner claims that Wiley provided ineffective assistance by failing to call Oranje as a witness. Oranje lived in a cabin near Gwinn's trailer. The prosecution provided discovery to petitioner that Oranje had told Robert and Kevin Kralicek and Chad Joseph that she saw "someone get their throat slashed" and saw the "guys" who were there. Ell, Wiley's investigator, tried to contact Oranje. She refused to speak to him. Wiley nevertheless served her with a subpoena, but ultimately chose not to call her to testify at trial.*fn7 That decision was not unreasonable. Oranje's statements were consistent with the prosecution's theory that petitioner killed Gwinn with a knife. Oranje did not say more than one "guy" killed Gwinn, only that more than one "guy" was there. Those "guys" likely were Chastain, DeSoto and Steiner, all of whom were present at the trailer at the time of the killing. Even if Oranje's statement was that she saw more than one person killing Gwinn, her testimony to that effect would have been contradicted by petitioner's own testimony that he alone had killed Gwinn. Oranje's statement did nothing to bolster petitioner's theory that he acted in self-defense. Under the circumstances, Wiley reasonably could have chosen not to call Oranje as a witness. Accordingly, the record does not indicate that Wiley's assistance was deficient with respect to Oranje.

i. Evidence as to Scott Elliott

Petitioner claims that Wiley was ineffective in failing to present evidence supporting petitioner's testimony that Elliott gave him money on the day of the killing. Various witnesses testified that petitioner had a significant amount of cash after Gwinn was killed. The prosecution's theory was that petitioner had stolen the money from Gwinn, which was evidence of petitioner's motive for killing Gwinn. Petitioner testified that he went to Elliott's house shortly after the killing and that Elliott gave him $700 along with some clothes. The source of petitioner's money is relevant as to whether petitioner killed Gwinn in the course of a robbery or in self-defense.

Elliott testified at trial and at the hearing on the motion for new trial that he had only seen petitioner briefly on two occasions, that he did not lend petitioner any money, and in fact hardly had any money of his own. At the hearing on the motion for new trial, Ell testified that he had attempted to interview Elliot on two occasions. On the first occasion, Elliott admitted giving petitioner clothing and boots, but when Ell asked him about the money, Elliott became nervous and asked what would happen to him if he had done so. A week later, Ell attempted to interview Elliott a second time, but Elliott refused to talk to him. Ell passed this information on to Wiley, who did not use it to impeach Elliott. Petitioner argues that Elliott's response to Ell's question as to whether he gave petitioner money shows that he was afraid of getting in trouble if he admitted doing so.

Queen, who had testified at trial for the prosecution, testified at the hearing on the motion for new trial that petitioner normally wore tight jeans but on the night of the killing he was wearing a baggy shirt and long baggy pants. He explained that he failed to mention this at trial because he was not asked about the fit of petitioner's clothes. Petitioner argues that because Elliott is larger than petitioner, Queen would have supported petitioner's testimony that he had obtained clothing, and money as well, from Elliott.

Petitioner claims that Wiley was ineffective in failing to impeach Elliott and in failing to elicit Queen's testimony regarding the clothes. The record establishes that no prejudice resulted from these asserted deficiencies. The testimony was, at best, weak circumstantial evidence that Elliott gave petitioner money. Ell's testimony was not that Elliott admitted giving petitioner money, but that Elliott at most gave an ambiguous response to Ell's questioning, leaving the jurors to speculate as to Elliott's reasons for doing so. Similarly, although Queen's testimony about petitioner's clothing may have indicated that petitioner got the clothes from a person larger than himself, that person was not necessarily Elliott. Moreover, even if the jury were to infer that the clothes came from Elliott, the jury would then have to draw a further inference that because Elliott gave petitioner clothes, he also gave petitioner money. By contrast, Elliott's testimony that he did not give petitioner money was both direct and highly credible evidence. Elliott's testimony was not contradicted by any witnesses other than petitioner and was corroborated by both Stark and Stroud, each of whom testified that Elliott did not have $700 to lend to petitioner. Elliott's testimony was further corroborated by Stark's testimony that petitioner had money before going to Elliott's house. Indeed, Elliott's testimony was consistent with petitioner's own written statement to the police in which he did not assert that Elliott had loaned him money, but rather than he had obtained the money from Queen, from a friend in San Jose and from past paychecks. Under these circumstances, there is no reasonable likelihood that the relatively weak and ambiguous evidence from Ell and Queen would have persuaded the jury that Elliott gave petitioner money. Moreover, there is no reasonable likelihood that their testimony would have altered the verdict given the substantial evidence of guilt in this case.

j. Photographs of Petitioner

Petitioner claims that Wiley should have objected to the admission of photographs taken several hours after petitioner was booked into the county jail. Those photographs depicted petitioner's bare upper body and showed petitioner in jail clothes. There is no objection, however, that counsel could have made successfully. The photographs were relevant on the issue of whether, as petitioner claimed, he received scratches, bites, and bruises to his upper body in defending himself against Gwinn. Although petitioner argues that the photographs were prejudicial to the extent he is shown wearing jail clothes, any prejudice is minimal when compared to the probative value, as the jury already knew that petitioner had been arrested and placed in custody in the county jail. Accordingly, Wiley's failure to object to the use of the photographs was not ineffective assistance of counsel.

k. Shock Belt

Petitioner claims that Wiley was ineffective for failing to object to the electric shock belt petitioner was required to wear in the presence of the jury. Petitioner does not explain how such an objection could be considered meritorious. Petitioner was not required to wear shackles or other visible restraints, and there is no indication in the record, nor has petitioner offered to show, that the jury was able to observe the belt or notice that he was restrained. Consequently, the record does not support a finding that the belt prejudiced petitioner or that there is a reasonable probability that an objection would have made a difference in the outcome of the trial.

1. Cross-bow and Binoculars

Petitioner claims that Wiley was ineffective in failing to present evidence that Gwinn owned the cross-bow and binoculars that Wagy took from Gwinn's trailer. Wagy had testified that he owned the cross-bow and binoculars. The evidence regarding the ownership of these items was not relevant to petitioner's defense of self-defense. Petitioner was not trying to show that Wagy, or anyone else, had a motive to kill Gwinn. Petitioner admitted that petitioner killed Gwinn. Nor would impeaching Wagy's testimony have bolstered petitioner's claim of self-defense. Wagy was not present when Gwinn was killed. Accordingly, Wiley acted reasonably and competently in not presenting the evidence regarding the ownership of the cross-bow and binoculars.

m. Closing Argument

Petitioner claims that Wiley was ineffective because during closing argument he argued that if the jury did not acquit petitioner of all charges, it could find him guilty of the lesser-included offense of second degree murder. Wiley's decision to make this argument was reasonable considering the strong evidence of petitioner's guilt, including the multiple eyewitnesses and petitioner's own admission to killing Gwinn. Wiley did not concede petitioner's guilt. He argued that petitioner was guilty of nothing and should be acquitted. It was only if the jury had decided to convict petitioner, Wiley argued, that the jury should consider the lesser-included offenses. Presenting a lesser-included offense as an alternative, in the face of the substantial amount of testimony and other evidence implicating petitioner, was a reasonable strategic decision that could have garnered petitioner a shorter sentence. Accordingly, Wiley's closing argument did not constitute ineffective assistance of counsel.

2. Prosecutorial Misconduct

Petitioner claims that his right to due process was violated because the prosecutor presented false testimony from Wagy that he owned the cross-bow and binoculars that he took from Gwinn's trailer. The knowing use of false or perjured testimony by a prosecutor in order to obtain a conviction violates the defendant's right to due process. Napue v. Illinois, 360 U.S. 264, 269 (1959). Petitioner alleges that Gwinn's son made a statement to defense counsel that the cross-bow belonged to Gwinn, and that Sheila Warner stated that Pearl had given her the binoculars. This testimony simply reflects a dispute as to the ownership of the items. It does not establish that Wagy's testimony was false, much less that the prosecutor knew it to be false. Accordingly, petitioner's claim of prosecutorial misconduct fails.

3. Ineffective Assistance of Appellate Counsel

Petitioner claims that his appellate counsel was ineffective because he did not present petitioner's claims of ineffective assistance of trial counsel, wrote an ineffective brief, and should have filed a habeas petition based on petitioner's ineffective assistance claims. Due process requires that appellate counsel provide effective assistance to an indigent client. Evitts v. Lucey, 469 U.S. 353, 355-56 (1985). Claims of ineffective assistance of counsel are analyzed according to the Strickland standard, namely, that counsel's performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's performance, the outcome on appeal would have been different. Miller v. Keeney, 882 F.2d 1428, 1433-34 (9th Cir. 1989). Here, appellate counsel in fact presented eleven separate claims of ineffective assistance of trial counsel. To the extent petitioner is arguing that counsel should have raised the additional points regarding counsel's performance that petitioner raises herein, there is no prejudice because, for the reasons discussed above, such claims have no merit. In any event, "the weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy." Id. at 1434. Petitioner's contention that the brief was inadequate also fails. The fact that petitioner lost the appeal does not, ipso facto, establish its insufficiency. A review of the brief reveals it to be cogent, and indeed to form the basis for many of the arguments petitioner raises herein. Finally, there is no constitutional right to counsel, or the effective assistance of counsel on state habeas petitions. Consequently, petitioner's claim that appellate counsel should have filed a state habeas petition does not implicate any of his constitutional rights. Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th Cir 1993); Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996). Accordingly, petitioner's claim of ineffective assistance of appellate counsel fails.

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

All pending motions are terminated.

The clerk shall close the file.

IT IS SO ORDERED.

JUDGMENT IN A CIVIL CASE

[] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

[X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is DENIED.

All pending motions are TERMINATED.


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