United States District Court, Northern District of California
April 30, 2003
DARYL B. HAYNES, PETITIONER, VS. DAVE RUNNELS, 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
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Alameda of the murder of Timothy Byers with the use of a firearm, the attempted murder of Michael White with the use of a firearm and with infliction of great bodily injury, the attempted murder of James Hammonds with infliction of great bodily injury, and possession of a firearm by a felon. The jury also found true allegations that petitioner had suffered two prior convictions for possession of narcotics for sale.
On April 18, 1997, petitioner was sentenced to one term of 25 years to life, plus two indeterminate terms of life, plus a 38-year determinate sentence. The California Court of Appeal affirmed the judgment of conviction and the Supreme Court of California, after initially granting review, dismissed review on February 28, 2001.
Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on February 13, 2002, the court found that the petition, when 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.
The California Court of Appeal summarized the facts of the case as follows:
The victims, Byers, White and Hammonds, were smoking
crack cocaine with Hammonds' fiancé, Denise
Conley, in room 16 of the Maya Motel in Oakland around
8:45 p.m. on April 3, 1996, when they heard a knock on
the door. When Conley opened the door, someone with a
semi-automatic rifle fired 17 shots into the room.
Byers was hit by at least five bullets and died from
the bullet wounds. Hammonds was shot in the leg and
had to have surgery to repair his left thigh bone.
White was found in an alley behind the motel, lying on
top of what had been a window in room 16 on the second
story. White had been shot twice, and had a major
fracture on his left arm as well as multiple rib
fractures. Hammonds and Conley testified that when
they saw White after the shooting they noticed that
part of his arm had been amputated.
Witnesses testified that appellant and Shaun
"Holiday" Carter both sold drugs in the area around
the Maya Motel. Appellant and his girlfriend, Brandi
Pratt, stayed on and off at Janet Walker's house next
to the motel. About two weeks before the shooting at
the motel, appellant had been shot and grazed in the
head by a bullet in front of Walker's house.
On the evening of April 3, appellant borrowed a car
from his sister, Stephanie Young, and he went with
Pratt to San Leandro to look at a car being sold by
Doug Matichak. They called Matichak twice from the
cellular phone in Young's car to ask for directions,
and billing records for the phone showed that the
second call was placed at 8:08 p.m. Matichak
remembered an African-American couple coming by to
look at his car that night. He testified that they
arrived about five minutes after their second call for
directions, and stayed for 10-15 minutes at most
before they left without buying the car.
An investigator for the District Attorney's office
confirmed that it takes 13 to 14 minutes to drive
under the speed limit from Matichak's house to the
Maya Motel. Walker testified that appellant came by
her house between 8:30 p.m. and 9:00 p.m. on April 3rd
to pick up the "big gun" he had asked her to hold for
him the night before. According to Walker, appellant
was "upset cursing, mad." As he left her house with
the gun he said, "nobody is selling dope around here
but me." A few minutes later, Walker heard gunshots at
the Maya Motel. Walker said she was nervous about
testifying at trial because two months earlier some of
appellant's friends had told her they would kill her
if she testified against him.
Hammonds and Conley were staying in room 16 at the
motel. They had both bought drugs from time to time
from appellant and Holiday Carter. Carter, who also
lived at the motel, had stopped by their room on the
day of the shooting.
Conley testified at trial that she knew appellant by
his nickname, "D," and she identified "D" as the
gunman when she was interviewed by Sergeants Banks and
Olivas in the hours after the shooting. Banks
testified that Conley was very upset during the
interview, and started screaming when she was shown
appellants' picture in a photo lineup. Conley's
audiotaped statement on the night of the shooting was
played for the jury. In it, she said that the man in
picture number two in the lineup did the shooting and
that the man in the picture was "D" for "Daryl."
Before identifying appellant by name on the tape,
Conley asked, "Do I have to?" Conley said on the tape
that, after the knock on the door, someone identified
himself as "Marty, Mitch" or something that started
with an "M," and that she heard two different voices
outside the room during the incident. Banks testified
that Conley called her three weeks after the incident
and said that "Mike" had been with appellant when the
An officer who first arrived at the scene of the
shooting testified that Hammonds said he knew who had
shot him and would "get" him. Banks and Olivas spoke
to Hammonds in the hospital the morning after the
shooting. His leg was heavily bandaged and he was in
pain, but according to Banks he was alert and
cooperative. Hammonds told them "D" had shot him,
identified appellant in a photo lineup, and with some
difficulty signed the back of appellant's picture.
Hammonds' taped statement was played for the jury. In
it, he said that he saw his friend "D" standing
outside the door to room 16 with a gun. Hammonds
said, "man, you don't need that thing," but appellant
started shooting. Hammonds thought that appellant
might have been mad at him because Carter had been
over to the room about an hour before the incident. He
thought appellant was having "business" problems with
Carter, and he knew that appellant had recently been
shot. Hammonds denied at trial that he had dealt drugs
out of room 16 in the three or four months he lived
On the evening of the shooting, Claire Urmson was
visiting a friend who lived near the Maya Motel. When
she heard the shots, she went out on the porch and saw
an African American male running from the direction of
the motel with a rifle sticking out of his jacket. She
got a good look at the man and saw his face from a
"three quarter angle profile." She is an art student,
trained to remember features, and she recalled that
there was a "smooth roundness" to the man's head, and
that the man had "full lips" and a "puggish nose."
Urmson testified that appellant looked "similar" to
the man she saw. She said he had a "smooth and good
looking face" like the man she saw.
Appellant did not take the stand in his defense.
Pratt testified that she and appellant went straight
back to Stephanie Young's house after looking at
Matichak's car. She said they arrived there around
9:25 or 9:30 p.m. Appellant's brother John testified
that appellant was at Young's house when he arrived
there around 9:20 or 9:30 that night. He said it takes
about 20 to 25 minutes in light traffic to drive from
the vicinity of the Maya Hotel to Young's house.
Young testified that appellant and Pratt had
returned to her home about 8:30 or 8:35 p.m. She said
she remembered the time because her husband had
returned home earlier than usual that in g from his
regular basketball game, and arrived there five
minutes before appellant and Pratt. Young said she has
"a habit at looking at the clock whenever something
happens. I watch too many cop shows." She said she is
"an avid crime drama fan and always amazes me when
people are asked what time a certain event occurs, no
one ever knows. So, I just became a time watcher, I
guess." Young admitted that her cell phone was not
taken out of the car that night, and could not explain
the calls listed on the bill for that phone at 8:57
and 9:22 p.m.
The incriminating evidence elicited from the
prosecution s principal witnesses was impeached in
At trial Hammonds recanted his earlier
identification of appellant. Hammonds denied having
seen appellant with a rifle in the doorway of room
16. He testified that when Conley opened the door he
could see a rifle but not the person holding it, who
was behind the door. Hammonds said it is difficult to
focus your eyes when you are smoking crack. Hammonds
said that the signature on the back of appellant's
picture from the photo lineup start[ed] off like his
signature, but that it was messy and he could not
remember writing it. He was on medication when he
spoke to the police at the hospital and did not
remember saying that he had seen two people at the
door. He did not remember telling the police that he
heard someone at the door say "It's Mike," or that he
thought he heard appellant's voice at the door.
In the statement Conley gave to the police at the
scene, she denied seeing who was at the door when the
shots were fired. The officer who took Conley's
statement testified that people at the scene are
sometimes not "being totally up front" because they
are nervous or scared and there are a lot of people
around. Thus, Conley was taken to the police station
for more questioning.
At trial Conley said she remembered being
interviewed by the police six or seven hours after the
shooting, but said she could not remember what she
told them. She did not remember telling Sergeant Banks
that she had heard someone outside the door of room 16
say "hey Tim." She did not remember saying that she
saw "D" fire the shots. She remembered that Banks
showed her a series of photographs, and acknowledged
that she "probably" identified appellant as the
shooter from the photos. However, she was "upset" and
"high" at the time, and insisted at trial that she did
not see who did the shooting.
According to the transcript of the preliminary
hearing, Conley had testified that she "saw Daryl with
a gun." At trial, she said her statement was that she
"saw the barrel of a gun." She could not remember
testifying that she heard appellant's voice when she
saw the gun. She vaguely remembered testifying that
she heard a voice that "could have been Daryl" say
"what's up. Hey Tim. Mike, what's up."
Conley testified at trial that after hearing the
knock on the door she went over to the door and asked
who it was. Conley first said she did not remember
whether there was any response to the question. She
then said a voice outside might "possibly" have said,
"it's Mike." She then said she "guess[ed]" she had
heard a voice say Marty or something like that. It was
"Marty, Mitch," or something that maybe started with
an "M." When he opened the door to see who it was, all
she saw was the barrel of a gun through the door; she
did not see who was holding the gun. She ended up
behind the door, and saw only dark pants through the
door. Conley said she did not want to be in court
testifying. She did not "want to have anything to do
Walker admitted at trial that when she was
questioned by a police officer on the night of the
shooting, she said only that she had heard shots and
did not mention that appellant had stopped by her
house to get a gun. She said she was afraid when she
was first asked about the incident. About three weeks
alter, when the police brought her in for further
questioning, she told Sergeant Olivas about appellant
and his gun. Walker said that she was high on crack
and alcohol during her interview with Olivas, but was
"clean and sober" by the time of trial. Walker
variously testified that she had bought cocaine from
appellant, that she had not bought cocaine from
appellant, and that when she told the police that she
had bought cocaine from appellant, that was wrong.
In cross-examination, Walker said that when she was
brought in for questioning, the police told her that
they would lock her up if she did not give them a
statement. They said he would arrest her for the drugs
she had in her house when they picked her up, so she
was going to give them a statement, "anything they
wanted to hear." However, she insisted that she had
told Sergeant Olivas the truth.
Urmson's testimony was called into question by her
friend Kami Springer. Urmson was at Springer's house
when she observed the man running from the Maya
Motel. Urmson told Springer on the night of the
shooting that the man she saw had a rifle, but then
later said it was not a rifle. After Urmson testified
at trial, she told Springer that while appellant could
have been the one she saw running that night, she did
not think it was him because the man she saw that
night was heavier than appellant. She said that
appellant looked similar to the man she saw that
night, but that she could not really tell if it was
the same person. Urmson also said that appellant was
"a fine looking young man," whereas the man she saw
running was not. Springer said that Urmson did not
want to get involved, and was worried about everyone's
Appellant's brief notes that the prosecution's case
depended on the testimony of witnesses who were "drug
addicts, drug sellers, liars, convicted felons, people
testifying to avoid prosecution (Janet Walker), and
people who would change their own story at the drop of
a hat. . . . Every percipient prosecution witness
totally changed their story from one point to
another. Each necessarily lied in court, or to a
police officer, or perhaps both." Respondent notes
that appellant's alibi defense was weak because
Young's testimony that he was at her house when the
shooting occurred was contradicted by her car phone
records and by Pratt.
After hearing evidence and argument over the course
of about eight court days, the jury deliberated for
over four days before reaching its verdicts.
People v. Haynes, No. A078379, slip op. at 2-7 (Cal. Ct. App. May 20, 1999) (Resp't Ex. B) (emphasis in original).
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).
The writ 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." Id. § 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. Id. at 412; Clark v. Murphy, 317 F.3d 1038, 1044 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
B. Claims & Analysis
Petitioner raises several objections to the admission of certain statements by Sylvia Gregory, another eyewitness to the shooting. Gregory, the girlfriend of the murdered man Byers, like Hammonds and Conley, initially identified petitioner as the gunman but later changed her story. Gregory testified at the preliminary hearing but was determined to be unavailable for trial. As a result, much of Gregory's statements were introduced at trial through the testimony of others. Petitioner claims that the introduction of much of Gregory's statements violated his constitutional rights (including his right to confront witnesses) and that he received ineffective assistance of counsel because trial counsel failed to properly object to the introduction of all of Gregory's statements.
The California Court of Appeal summarized Gregory's statements and how they were introduced at trial:
. . . Portions of Gregory's preliminary testimony
were read into the record at trial. An audio tape of
Gregory's statement to the police in the aftermath of
the shooting was played at the preliminary hearing and
for the jury at trial. Sergeant Banks testified to
statements Gregory made during her interview before
those recorded on the tape. Deputy District Attorney
Vukasin testified to statements Gregory made around
the time of the preliminary hearing. Sergeant Olivas,
who was called as a defense witness, testified to
Gregory's statements at the crime scene, and to her
identification of appellant in a photo line up in the
hours after the shooting.
Olivas said that Gregory, like Conley, did not
identify appellant when she was initially questioned
at the crime scene, but then did so a few hours later
when she was questioned at the police station.
Banks testified that during the interview at the
station Gregory said she was waiting in room 14 of the
Maya Motel while Byers visited room 16. She said she
went outside onto the second floor balcony of the
motel when she heard someone outside saying "Fuck
that. Fuck that." Appellant was down in the driveway
holding a rifle and asked her, "Bitch, are you selling
dope up there?" She went back into her room and then
saw appellant walk by her room with a gun to room 16.
There was a knock on the door of room 16, she heard
appellant say "Mike" or "Mitch," and then she heard
shooting. When Gregory recounted this, she was afraid
but did not a p pear to be under the influence of
drugs. Banks interrupted the interview and got a
photograph of appellant along with others. Gregory
identified appellant as the assailant by signing the
back of the photo.
In her taped statement that night, Gregory said that
she opened the door to room 14 when she heard loud
voices outside. She looked out into the parking lot,
and saw appellant "standing down there with this big
gun and pointing it up, and he said `what's up over
there?'" Appellant was with "Mike," "the guy he calls
his brother." Appellant pointed the gun at her and
said, "who is selling dope up there?" He called her a
"bitch" and told her to get back in the room. She went
into her room, cracked the door and peeked out. She
saw appellant go to room 16 and Mike, who was
unarmed, arrive there from a different direction.
Appellant stepped back while Mike knocked on the
door. After Mike said his name the door opened, and
appellant said he needed to see Hammonds. Gregory shut
her door when she saw appellant raise his gun and
point it into room 16, and then she heard a lot of
Gregory said on the tape that Hammonds was "selling
drugs for Holiday Carter. This upset appellant because
Holiday used to be around years ago and he ran the
motel, you know what I'm saying? It's like he left,
and Daryl came around there, and since he left and
Daryl been around, it was like you can't come back
here and sell dope. So they had a thing, plus he
thinks Daryl thinks Shaun is the one who shot him in
the head. So he doesn't want him around here." About
three nights before the shooting, Gregory had heard
appellant say "Y'all need to get your asses off
Shattuck, you can't just be standing around here,
nobody would move, and he said y'all going to keep on
and I'm going to shoot me somebody here on Shattuck.'
Appellant "told everybody in the motel that nobody
better be selling dope." He said "they either work for
me or they ought not to be at that motel . . . selling
dope. Period. Nobody."
Gregory said on the tape that appellant's reputation
in the neighborhood was that "he goes for bear, it is
like if you do something to "D," he is going to either
beat you up or shoot you that's how it is." Appellant
usually carried two handguns in his coat pocket. She
was afraid that appellant might harm her "because he
knows I seen him." Gregory was shown eight photographs
of black males and identified appellant as the person
who committed the crimes. Gregory said she saw him
kill her boyfriend. She was "positive" about the
identification. She was not intoxicated when she saw
appellant with the gun. She concluded the taped
statement by insisting that everything she had said
was "the honest to God's truth."
Sergeant Banks testified that she made no threats or
promises to Gregory during the interview. After
Gregory's interview was finished, Banks arranged for
her to stay at a motel for two or three days.
District Attorney Vukasin testified that when she
spoke with Gregory in jail three months after the
shooting, Gregory told her she wanted to tell the
truth, and that "D" was the shooter. However,
Gregory's attitude had changed by the time of the
preliminary hearing. Gregory asked Vukasin before the
hearing how she could "make her come into court and
say in front of Daryl Haynes that he was the person
that killed her boyfriend."
Vukasin noticed that when Gregory first took the
stand at the hearing, she looked over at appellant and
smiled at him, and he smiled back at her. When Vukasin
played Gregory's taped statement back to her after her
first day of testimony at the hearing, Gregory told
her "over and over again that it was the truth."
However, Gregory was "terrified" about resuming the
stand because her boyfriend had told her that
appellant "would have her two sons taken into the
middle of a field and killed" if she testified against
Portions of Gregory's testimony at the preliminary
hearing were read into the record by Vukasin. Gregory
testified that she saw a guy with a long object that
could have been a gun coming up the back steps around
8:50 p.m. Her testimony was that she had never seen
that man before. When the man walked by her room, he
asked her who was selling drugs. She was high on crack
at the time. The man knocked on the door of room 16,
and when the door opened he said "what's up you all"
and then Gregory heard shooting. She had "no idea who
shot that gun."
Gregory was questioned at length about her interview
with the police on the night of the shooting, and
denied making many of her tape-recorded statements,
even though she acknowledged that it was her voice on
the tape. She said she was in "shock" after the
shooting, and that there were "a lot of things I don't
remember saying on that tape." "And then, too, it was
right after the shooting. I could have said anything.
And everybody was saying Daryl's name. I might have
said Daryl's name, also. But what I'm telling you
right now, out of my mouth, he did not do the
shooting." She denied seeing someone named Daryl
standing in the parking lot with a big gun, and could
not remember telling Sergeant Olivas that. She did not
remember talking to appellant three days before the
shooting about drug dealing in the area. She admitted
signing the back of appellant's photo, but said she
did so only because she was asked if she knew any of
the people in the pictures Olivas and Banks showed
her. She did not tell them right after signing the
photo that appellant had killed her boyfriend.
Gregory denied telling the district attorney that
appellant would kill her or her two sons if she told
the truth. However, she did acknowledge that someone
had called her on the first day of the preliminary
hearing and threatened something about her two
children. She also conceded that she might have told
the police that Hammonds was selling drugs for Holiday
Carter. The tape recording of Gregory's police
statement was played at the end of her initial direct
examination at the hearing.
In her cross-examination, Gregory said that the
police did not put her oath when she made her
statement. She said that she was pretty loaded on
crack, alcohol and valium on the night of the
shooting, and that she was still dazed and high when
she talked to the police. She said she did not leave
her room until five or six minutes after the
shooting, and never saw anyone with a gun. Some people
told her that the ones who were shot were friends of
Carter, and people were mentioning appellant's name
because he had recently been shot. When she talked to
the police she was concerned that they might do
something to her probation if she did not give them
On re-direct, Gregory said the police never
threatened her. She said she had talked to Conley
immediately after the shooting. Her testimony about
the conversation was: "She didn't tell me anything.
She said she think Daryl shot these people. She thinks
Daryl shot these people."
People v. Haynes, slip op. at 8-11.
2. Admission of Gregory's statements
The California Court of Appeal found that it was "undisputed" that Gregory's preliminary hearing testimony was admissible at trial under California Evidence Code section 1291(a)(2) because Gregory had been subjected to cross-examination by petitioner at the preliminary hearing. Id. at 11. In that properly-admitted testimony,*fn1 Gregory testified that Conley had identified petitioner as the assailant immediately after the shooting, and her testimony furthered the case against petitioner in at least two other respects. Her admission that she "might" have told the police that Hammonds sold drugs for Carter, together with the "nobody is selling dope around here but me" statement attributed to petitioner by Walker, and the evidence that Carter and petitioner both sold drugs in the area, tended to establish a motive for the shooting. Id. at 11-12. Gregory's acknowledgment of a threat against her children, coupled with the threat reported by Walker, supported the inference that witnesses were being intimidated into changing their stories. Id. at 12. However, as the state court properly noted, most of Gregory's preliminary hearing testimony was of no help to the prosecution because she denied seeing petitioner on the night of the shooting and denied having told the police otherwise. Id.
Here, as on direct appeal, petitioner contends that Gregory's most incriminating statements — those she made in her tape-recorded statement and those recounted by the district attorney — were the ones erroneously admitted into evidence. Unfortunately for petitioner, his federal claims attacking the admission of those statements are procedurally defaulted because petitioner failed to object to their admission at trial. As the California Court of Appeal put it: "Defense counsel made several hearsay objections during the testimony of Vukasin and Banks, but did not object to the whole of their testimony or to introduction of the recorded interview. Evidentiary objections not raised at trial are waived for purposes of appeal. (Evid. Code, § 353.)" Id. at 12.
In order to find petitioner's claims procedurally defaulted, the court must determine whether an "independent and adequate state [procedural] ground" exists to support the state court's procedural bar. Bennett v. Mueller, 296 F.3d 752, 755 (9th Cir. 2002). To constitute an adequate procedural bar, a state court procedural rule must be "clear, consistently applied, and well established at the time of the petitioner's purported default." Melendez v. Pliler, 288 F.3d 1120, 1124 (9th Cir. 2002) (citation omitted).
The Ninth Circuit has consistently held that California's contemporaneous objection rule, which requires objection at time of trial to preserve an issue for appeal, is an adequate procedural bar. See Chein v. Shumsky, 323 F.3d 747, 751-52 (9th Cir. 2003); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999); Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981).*fn2 The California Court of Appeal's invocation of California's contemporaneous objection rule here accordingly precludes federal review of petitioner's constitutional challenges to the admission of Gregory's statements unless petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). He makes no such showing. Petitioner's claims challenging the admission of Gregory's statements are barred from federal habeas review.*fn3
3. Ineffective assistance of counsel
Although the California Court of Appeal found that petitioner waived his objections to the admission of Gregory's statements, it noted that petitioner also properly claimed on appeal that "his counsel was incompetent to the extent that he did not object to the introduction of all of Gregory statements other than those at the preliminary hearing." People v. Haynes, slip op. at 12. The state court nonetheless rejected the ineffective assistance of counsel claim on the merits, and petitioner reasserts it here.*fn4
In order to prevail on an ineffective assistance of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. Id.
In order to show prejudice under Strickland from failure to object to the admission of evidence or testimony, as petitioner claims here, petitioner must show that (1) had his counsel objected, it is reasonable that the trial court would have sustained the objection, and (2) had the objection been sustained, it is reasonable that there would have been an outcome more favorable to him. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999).
The California Court of Appeal rejected petitioner's ineffective assistance of counsel claim by finding that: (1) the only material question was the admissibility of the taped statements in the police interview, (2) the taped statements were properly admitted, and (3) petitioner suffered no prejudice from any error in the admission of the taped statements. The state court's rejection of petitioner's claim was not based on an unreasonable application of Strickland, or an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d); Williams v. Taylor, 529 U.S. 362, 406, 409 (2000).
It suffices to say that the California Court of Appeal reasonably determined that the material issue was the admissibility of the taped statements because "the additional testimony of District Attorney Vukasin and Sergeant Banks and Olivas concerning Gregory's other statements . . . added nothing of significant to the evidence Gregory provided on tape and at the preliminary hearing." People v. Haynes, slip op. at 12. And, importantly, that the state court reasonably determined that petitioner was not prejudiced from any error in the admission of the taped statements. The state court explained:
. . . The issue of prejudice may be a relatively
close one in this instance because the jury
deliberated at some length before reaching its
verdicts, but it is very unlikely, for a number of
reasons, that the outcome turned on Gregory's recorded
We note first that Gregory was asked at the
preliminary hearing how she answered most of the
questions in the taped interview. The prosecutor went
through the interview, question by question and
response by response, and asked Gregory to verify her
responses as shown in the transcript of the
interview. Gregory was asked, for example: "Q.
Sergeant Banks said, "Did he [appellant] call you a
bad name?' And you said, "He called me a bitch.' A.
No.' Appellant does not dispute that the prosecution
was entitled to ask these leading questions at the
preliminary hearing. Although Gregory denied making
many of her recorded statements, her admissible former
testimony at the preliminary hearing would have given
the jury the gist of her police interview even if the
statements themselves had not been admitted.
Second, although Gregory's recorded statements
provided some unique details of what had occurred, all
of her most incriminating statements were cumulative
of other admissible evidence. Gregory said on the tape
that appellant had threatened to shoot people to
protect his drug-dealing territory and that he had a
gun just before the shooting; Walker likewise
testified that appellant was angry about others
selling drugs when he came by to get his gun just
before the shooting. In her tape I statement Gregory
identified appellant as the shooter, Conley and
Hammonds originally did so as well. Gregory said on
the tape that she was afraid of appellant and that he
was a violent and vengeful person; she and Walker also
testified to receiving threats in connection with
Third, Gregory was not the centerpiece of the
prosecution's case as appellant claims. She was only
one of three witnesses who positively identified
appellant as the assailant and then went "sideways" on
the stand. of those three witnesses — Gregory,
Hammonds and Conley — Gregory was the least
credible. Although the prosecutor used portions of
Gregory's taped statement during closing arguments, he
also used the taped statements of Hammonds and
Conley, and Gregory's evidence received no special
emphasis. The prosecutor urged the jury to replay the
tape of Conley's statement and listen to "how scared"
she was when she gave it. The prosecutor suggested
that "[i]f anyone knows who the shooter was, it was
James Hammonds." With respect to Gregory, the
prosecutor acknowledged that "[i]f this case weren't
too serious, it this case weren't so disgusting, her
testimony would have been comical." The jury had to
wrestle with the fact that no one had consistently
identified appellant as the assailant, but we do not
believe that their decision in the final analysis
would have turned on anything Gregory said.
Thus, appellant would not have been prejudiced by
any error in admitting the evidence of Gregory's tape
Id. at 21-23 (footnote omitted).
The California Court of Appeal's conclusion that petitioner did not receive ineffective assistance of counsel because he was not prejudiced by any error in the admission of Gregory's statements was not "objectively unreasonable." Williams, 529 U.S. at 409. Petitioner is not entitled to federal habeas relief on his claim of ineffective assistance of counsel.
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
The clerk shall enter judgment in favor of respondent and close the file. SO ORDERED.