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United States District Court, Northern District of California

May 27, 2003


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


Petitioner Edwin Rosenberg seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a judgment of conviction and sentence from the Superior Court of the State of California in and for the County of Santa Clara and affirmed by the California court of appeal. For the reasons set forth below, the petition is DENIED.


On May 21, 1997, petitioner was convicted by a jury of assault with a deadly weapon, Cal Penal Code § 245(a)(1), with personal infliction of great bodily injury, id § 12022.7(a), and attempted burglary, id §§ 459/460. The trial court found petitioner had six prior "strike" convictions, id § 1170.12(c) (2), and two prior serious felony convictions, id § 667(a). In the interest of justice, the court dismissed five of the prior "strike" convictions and sentenced petitioner to prison for 19 years.

The court of appeal upheld petitioner's convictions in an unpublished opinion filed on December 20, 1999. On March 1, 2000, the California Supreme Court denied petitioner's request for review.

Petitioner's request for a writ of habeas corpus from the state courts was denied by the superior court and the court of appeal, and on September 26, 2000, by the Supreme Court of California. He has exhausted his remedies in state court.

Petitioner filed his federal petition for writ of habeas corpus on December 12, 2001, alleging that he was denied his right to the effective assistance of appellate counsel. An order to show cause issued on March 11, 2002. Respondent has filed an answer. Petitioner did not file a traverse.


The court of appeal summarized the facts of the case as follows:

Sometime in the morning of August 10, 1996, Allison Richard and her two sons were in their apartment in San Jose, when defendant, an acquaintance of Richard's, knocked on the door. She told her sons to tell defendant she was in the shower. Around noon that day, Richard was standing in front of her apartment with her neighbor Helen Welch when defendant drove up in his truck and called out something to the two women. Richard thought his comment was rude, so she said, "This is what I do to niggers like you," and turned and walked to her apartment with Welch. She noticed defendant had parked his truck and was approaching her apartment at a fast pace. As soon as she and her friend were inside, Richard tried to close the front door, but defendant had put his foot in the doorway and pushed on the door so she could not close it. They struggled over the door. Defendant yelled at her to let him in and she yelled at him to go away or she would call the police. Defendant said he wanted the $40 Richard owed him for marijuana he had provided her; she believed that marijuana was a gift and she did not owe him money.
Defendant then took a pocket knife from his waist band and thrust the blade into the doorway opening. Ultimately, part of the door trim came apart or fell off. Richard's friend, Helen Welch, yelled at defendant and Richard to stop, and they eventually stopped struggling and Richard allowed defendant to enter her apartment. At trial, Richard could not recall defendant making any threats on her life, although she previously had testified in the preliminary hearing that defendant had threatened to kill her. When defendant entered, Richard was holding a large black vase or statue that she had grabbed, but Welch took it from her and put it on the entertainment center. Defendant put his knife back in his pocket.
Richard then told defendant she did not feel like dealing with him that day because she had just learned that someone had touched her son inappropriately. Defendant asked for his $40, and she told him to leave. He also offered to hire someone to get the person who had touched her son, but she assured him she did not need his help. Defendant refused to leave, and the two began screaming at each other. When defendant demanded she give him the money, she told him she did not owe him anything. She told him: "You are not putting any fear in my heart." Defendant then picked Richard up by her legs and she crashed into the wall behind her. She remembered nothing after that, until she came to with the paramedics and the police present. Defendant was not there. Richard's sons were under the stairs. One heard defendant say, "Do you want some more?" and then saw defendant kick his mother after she was laying on the floor.
Richard had blood all over her clothing. Her mouth and nose were broken, her eyes and face were swollen. At the hospital, she received about 30 shots of novocaine for her nose, which had to be pushed back in to place and covered with a nose brace.
Diego Marcial, a security guard, saw part of the confrontation, from his post outside in the swimming pool area. He first saw defendant approach Richard by her door and heard the two yelling. Richard asked defendant to leave, he would not, and she pushed him. Defendant said if she touched him, he would hurt her. Marcial saw defendant punch and kick the door trying to get it open after Richard and her friend went inside. He saw defendant then enter the apartment, but eventually heard more yelling and then heard the friend tell defendant she was going to call the police. After the friend left, Marcial heard something in the apartment break, then a couple of thuds, and a big crash. He could see Richard's hair and her hand against the window pulling down the blinds. Marcial then was able to see into the apartment and saw defendant cock his arm, then swing something on the floor where Richard had fallen. He heard children crying, but no female voice. Marcial then saw defendant walk calmly out the front door, look around, get in his truck and drive away.
Police Officer Richard Zehring was one of the responding officers. Based on information from Richard, the officers were able to locate defendant's address. While approaching that address, Officer Zehring received a dispatch concerning a 911 call made from defendant's residence. Defendant was then taken into custody and a knife was retrieved from his pocket. Police Officer Reed Biersdorff also responded to Richard's apartment and found her bleeding profusely from her nose and lips. She identified her assailant and his vehicle. She told the officer defendant had threatened her with a large black knife and pushed and punched her after she refused to pay him money he said she owed. Richard described defendant's threats, including "I'm going to kill you." She said she grabbed a black vase to defend herself, but defendant pushed it out of her hand and punched her in the face.
Officer Biersdorff also interviewed defendant after his arrest. Defendant said he went to Richard's residence to collect a $40 debt. They exchanged words and she slammed the door on him, breaking off some wood. He said he tried to talk to her through the door. When he looked through the window in the door, he saw her go into the kitchen, pick up a knife and walk back to the door, so he grabbed the door from the outside to hold it shut. Eventually Richard calmed down and let him come in. She said she was upset about her son being inappropriately touched. He said he only came for his money, and turned to leave. She continued to yell at him and eventually picked up a black vase and pointed it at his face. She said, "You don't put no fear in my heart." Defendant said he tried to push the vase away, but she swung it and hit him in the head. He then grabbed her and shoved her against the wall. He said she had a knife in her hand and swung it at him, so he began punching her. He said he then left the apartment, went to his uncle's house nearby to wash off the blood from his hands, and finally went back to his fiancee's house and called the police. Officer Biersdorff found no injury on defendant's head. Defendant never mentioned Helen Welch to him nor said anything about another person being present.
Defendant testified at trial, insisting he was acting in self-defense. He said soon after he met Richard, she asked him for some "weed" and he called his friend who provided her with some. Defendant said Richard wanted to be sexually involved with him, but he already had a woman. He said on August 10 he was in Richard's neighborhood and dropped by to get $40 he had loaned her. When he first went to her house, she turned him away, yelling that her sons were supposed to tell him she was in the shower. When he returned, Richard was outside and he commented on her hair. She stuck her hand out, went into her house and slammed the door. He knocked on her door, and saw her in the kitchen grabbing a knife and then running to the door. He couldn't run because of a bad leg, so he pulled on the door handle to keep the door shut. Defendant said they struggled over the door and she pushed the knife though the door opening and cut his hand. A piece of lattice work on the door broke off after Richard stabbed the knife in the door, and Helen Welch, who was present inside, tried to pull it out. Welch kept telling Richard she was "tripping." Finally, the door opened, the knife fell to the ground and Welch picked it up and put it on the entertainment center.
According to defendant, Richard began to cry and told him about her son being molested. She said she had called the police who were on their way to arrest the perpetrator. She rejected defendant's offer to help. When defendant pulled his car key out of his pocket, his knife also came out. He asked Richard for his money and she said she did not have time for "this shit." She then ran to the entertainment center, grabbed a statue and hit him over the head with it. Defendant testified Welch tried to calm him, saying, "You know she's not all here." Then Richard said, "Mother fucker, you don't put no fear in my heart," and waived the statue in his face. As he tried to push it away, she hit him in the head with it twice. He ran at her and both hit the wall. Richard tried to head-butt him. As he tried to hold her off, he noticed a knife in her right hand. He testified, "She left me no choice other than [] to defend myself. I'm a gentleman. I don't believe in a man striking a woman, . . ." He said he then hit her three or four times, and she hit him once before falling. He saw blood coming out of her nose and mouth, and she apologized to him. When he saw her getting up, he ran to his truck and left, because he thought she might pick up the knife again. He then went to his uncle's house nearby to wash the blood off his hands. When he called his mother from his fiancee's mother's house, she told him to call the police and he did. Two police officers arrived immediately and barged through the door. They did not want to know what had happened, even though he tried to tell them and offered to take them to the scene to see the statue and knife. Although he asked them to take pictures of his injuries, they never did. In cross-examination, defendant was questioned about his juvenile battery conviction. He admitted pushing a teacher, but denied ever hitting anyone in his life.
Defendant presented two witnesses: Tomika Broussard, his sister's best friend, and Thomas George, a man who had dated Richard briefly in 1993. Broussard testified that when she was at Richard's apartment having her hair done, Richard bragged about fighting with a man in August 1996, and putting him in jail. According to Broussard, Richard said she had a sexual relationship with the man. She gave Broussard the impression that she hit him first with a statue or grabbed a knife. George testified that after Richard got out of jail, she was upset because he just wanted to be friends. She threatened to destroy his property or have him beaten up. She once threw a vase at him and hit him with her fists and feet. In May 1996, his car was vandalized. Richard later drove by, waived a knife and threatened him.
People v. Rosenberg, No H018143, slip op at 2-6 (Cal Ct App. Dec 22, 1999).


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 or the United States." 28 U.S.C. § 2254(d). 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.

In a recent elaboration of this language, the Supreme Court held:

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. 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.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgement that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id at 411. "Rather, that application must also be unreasonable." Id. 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.

Petitioner claims he received ineffective assistance of appellate counsel under § 2254 because his attorney did not raise the following issues on direct appeal in state court: (1) the trial court erred in finding it did not have the discretion to dismiss petitioner's prior serious felony convictions; (2) the consideration of petitioner's 1985 burglary conviction during sentencing violated the Ex Post Facto Clause; (3) the prosecution's knowing use of perjured testimony; (4) ineffective assistance of trial counsel; and (5) discriminatory prosecution.


The Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Ineffective assistance of appellate counsel claims are reviewed according to the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). See also Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir 1989). Petitioner must show that counsel's appellate advocacy fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, petitioner would have prevailed on appeal. Id at 1434 n9 (citing Strickland, 466 US at 688, 694).

It is important to keep in mind that appellate counsel does not have a constitutional duty to raise every issue requested by a criminal defendant. Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir 1997). The weeding out of weaker issues is widely regarded as one of the hallmarks of effective appellate advocacy. Miller, 882 F.2d at 1434. Thus, even if appellate counsel declines to raise weak issues, counsel will frequently remain above an objective standard of competence and have caused no prejudice to the client. Id.


Petitioner claims the trial court misunderstood its discretion to strike his prior serious felony conviction enhancements pursuant to California Penal Code § 667(a).

A California trial court judge, in the interest of justice, has the discretion to dismiss prior strike convictions for purposes of sentencing under California's three strikes law. Cal Penal Code § 1385. The trial judge is expressly not authorized, however, "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667," id § 1385(b), or "to strike the additional punishment for any enhancement that cannot" otherwise be struck under this section, id § 1385(c)(2). The trial court correctly determined it did not have the discretion to strike the sentence enhancements for a prior serious felony under § 667(a).

Appellate counsel was not ineffective for failing to raise this frivolous claim. See Miller, 882 F.2d at 1434 n9.


Petitioner claims that the application of § 1385(b) and § 1385(c)(2) to his prior serious felony convictions from 1985 constitute a violation of the Ex Post Facto Clause. It is well settled that a sentence enhancement for a prior conviction does not violate ex post facto principles so long as the recidivist statute is "on the books at the time the [present] offense was committed." United States v. Kaluna, 192 F.3d 1188, 1199 (9th Cir 1999). Not surprisingly, courts have uniformly rejected the claim that three strikes laws violate the Ex Post Facto Clause. See id (federal three strikes law); People v. Brady, 40 Cal.Rptr.2d 207, 212-13 (Cal App. 1995) (California three strikes law); Buckley v. Yearwood, 1998 US Dist Lexis 5668, *8 (ND Cal 1998) (California three strikes law). Here, the relevant issue is that the statute, as amended to limit discretion, has been on the books since 1986, and petitioner's present offenses were committed ten years later in 1996. There was no ex post facto violation. See Kaluna, 192 F.3d at 1199.

Appellate counsel was not ineffective for failing to raise this frivolous claim. See Miller, 882 F.2d at 1434 n9.


Petitioner claims the prosecutor knowingly used perjured testimony at trial. The Supreme Court held that "a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment." Napue v. Illinois, 360 U.S. 264, 269 (1959). To establish this constitutional violation, petitioner must demonstrate that (1) the challenged testimony was false; (2) the prosecutor knew or should have known that it was false; and (3) the false testimony was material. See id at 269-71.

In support of this claim, petitioner alleges that the victim's testimony was not internally consistent and that her testimony was contradicted in some respects by other witnesses. Contradictory testimony, without more, does not show that the prosecutor used false testimony. See United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir 1989). The inference that may be drawn from discrepancies in the testimony of different witnesses is similarly "too weak" to show a prosecutor knew the testimony was false. United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir 1995).

Petitioner claims the victim testified falsely because she testified the knife was in petitioner's right hand at the preliminary hearing and in his left hand at trial. When defense counsel confronted her on this point, the victim testified that she did not remember previously testifying that the knife was in petitioner's right hand. Petitioner also claims that the victim's initial claim that she had not had sex with petitioner was contradicted by the testimony of Broussard. On cross-examination, the victim explained that she had defined "sex" as sexual intercourse, and admitted she had other kinds of sexual relations with petitioner. Petitioner points to inconsistencies between the victim's testimony and other witnesses, such as whether she told officer Biersdorf that petitioner said he was going to kill her, and whether petitioner kicked and punched the door, as Mr. Marcial testified, or whether he stuck his foot in the threshold and pulled on the door during the struggle.

The alleged discrepancies in the victim's testimony are just as likely to "flow from errors of recollection as from lies" and as such do not constitute proof of perjured testimony. Zuno-Arce, 44 F.3d at 1423. Additionally, petitioner offers no evidence whatsoever, other than the unsupported assertion, that the prosecutor knew the victim gave false testimony.

Appellate counsel was not ineffective for failing to raise this claim on appeal. Petitioner has not shown a reasonable probability that but for counsel's failure to raise this claim, he would have prevailed on appeal. See Miller, 882 F.2d at 1434 n9.


Petitioner claims he received ineffective assistance of trial counsel. The essence of an ineffective assistance of counsel claim is that counsel's incompetence disturbed the adversarial balance between defense and prosecution to the point that the trial was rendered unfair and the verdict rendered suspect. Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). In order to establish an ineffective assistance of counsel claim, petitioner must show that: (1) counsel's conduct fell outside the "wide range of professional competent assistance" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 US at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. Judicial review of counsel's performance is highly deferential, and there is a strong presumption that counsel's conduct fell within the range of reasonable professional assistance. Id at 689. The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir 1998).


Petitioner first claims his trial counsel was ineffective because he did not move to sanitize petitioner's prior burglary convictions.

At trial, defense counsel moved to exclude petitioner's prior burglary convictions. The court denied the motion, and the prosecution was allowed to use the burglary priors for impeachment purposes. Petitioner contends defense counsel should have moved to sanitize the priors in order to reduce their prejudicial effect in the mind of the jury. People v. Heckathorne, 248 Cal.Rptr. 399, 402 n2 (Cal App. 1988) ("sanitizing" priors by requiring all parties to refer to the convictions in a general rather than explicit manner may reduce their prejudicial effect on the jury).

Once the trial court decided to admit the priors, defense counsel had two options. He could simply allow the priors to be identified as burglaries, or he could move to sanitize the priors by having them referred to in a non-explicit manner. Each approach had potential benefits and drawbacks. If the priors were revealed to be burglaries, the jury might be prejudiced in their consideration of the present attempted burglary charge. On the other hand, if the prior burglaries were sanitized, this partial knowledge might provoke the jury's curiosity as to why the exact crime was not revealed, and ultimately do more harm than if petitioner's record was frankly discussed. Ultimately, defense counsel chose not to sanitize the prior convictions. There were reasonable grounds to justify such a tactical decision. And even if sanitizing the prior convictions may now be said to have been the better choice, such hindsight will not show that counsel was ineffective. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir 1984) (counsel not ineffective simply because in retrospect better tactics are known to have been available). Counsel's decision here was not unreasonable. See Babbitt, 151 F.3d at 1173.

Additionally, there is no reason to believe the trial result would have been any different if the priors had been sanitized. The evidence against petitioner was substantial. He testified that the victim struck him in the head with a statue and that he acted in self-defense, but the arresting officer could discern no injuries on him and his supposed attacker, the victim, was beaten senseless. The testimony of the victim naming petitioner as her assailant was corroborated by two witnesses, a nearby security guard, and the victim's son, who was in the house during the altercation. The prosecutor would still have been able to attack petitioner's credibility with the sanitized priors, and in any event, the prosecution did not rely heavily on the burglary priors on making its case. There simply is no showing of prejudice. See Strickland, 466 US at 693 (petitioner must "affirmatively prove prejudice").


Next, petitioner claims his trial counsel was ineffective for failing to obtain copies of the calls to 911 made by Helen Welch, the victim, and petitioner. He also faults his trial counsel for not sending an investigator to speak with Helen Welch and determine whose version of events she would corroborate.

Petitioner's claim fails because he shows no prejudice from the alleged deficiencies. See id. Petitioner offers no basis for his belief that the audio of the 911 calls by the victim and Helen Welch would have contradicted each other or in any other way aided in his defense. Under cross-examination at trial, he admitted that he was merely speculating about differences between the calls. RT at 390. There is also no reason to believe Helen Welch would have provided testimony favorable to petitioner. She was the victim's friend and the first to call the police and report the incident. Additionally, on rebuttal, the prosecution offered evidence that Helen Welch did not testify at trial because she feared that petitioner would hurt her. RT at 456-57. Given that potential, it seems quite reasonable that petitioner's trial attorney concentrated his efforts in other areas and was content to leave Welch's testimony out of the trial.


Finally, petitioner claims his trial counsel was ineffective for failing to properly investigate alibi evidence. It is unclear what possible alibi evidence petitioner makes reference to here, as he did not deny he was at the scene, or even that he struck the victim, albeit in self-defense. Generalized theories and speculation by petitioner are not sufficient to show that counsel was ineffective. See United States v. Cronic, 466 U.S. 648, 666 (1984) (claimant must point to "specific errors made by trial counsel"); Jones v. Gomez, 66 F.3d 199, 205 (9th Cir 1995) (conclusory allegations of ineffective assistance of counsel do not warrant relief).

In sum, petitioner has failed to show either that his trial counsel acted unreasonably at trial, or that but for his counsel's questionable decisions, there was a reasonable probability of a different outcome at trial. Accordingly, he has not shown that appellate counsel was ineffective for choosing not to raise the same weak claims of ineffective assistance of trial counsel on appeal. See Miller, 882 F.2d at 1434 n9.


Petitioner claims he was the victim of selective or discriminatory prosecution, which occurs when a prosecutor brings a charge for reasons forbidden by the Constitution. See United States v. Armstrong, 517 U.S. 456 (1996). A prosecutorial decision may not be based on "race, religion, or other arbitrary classification." Id (citation omitted).

Courts presume that prosecutors have properly discharged their duties, and to overcome this presumption a criminal defendant must present "clear evidence to the contrary." Id. An unsupported allegation of selective prosecution is not enough. See United States v. Davis, 36 F.3d 1424, 1433 (9th Cir 1994); United States v. Buffington, 815 F.2d 1292, 1305 (9th Cir 1987).

"To establish impermissible selective prosecution, a defendant must show that others similarly situated have not been prosecuted and that the prosecution is based on an impermissible motive." United States v. Aquilar, 883 F.2d 662, 705 (9th Cir 1989) (superseded by statute on other grounds) (citation omitted). The similarly situated group acts as a control group. Id at 706. If all else is equal, the prosecution of the defendant and not members of the control group would "give rise to an inference of discrimination." Id. In the absence of a sufficiently similar control group, petitioner's claim must fail as there can be no unequal treatment in a vacuum. Id.

Petitioner argues that his claim of self-defense was not fully investigated because the victim was a woman. Essentially, petitioner argues that he and the victim were similarly situated because they both claimed that the other had committed assault, and thus the decision to prosecute only him is suspect.

Petitioner's claim is without merit. The victim was found beaten unconscious and with severe injuries. Independent witnesses indicated that petitioner was the assailant. Petitioner claimed he had been hit in the head, yet the officer who arrested him could discern no visible injury. Given the substantial evidence against petitioner, it is entirely reasonable that he became the focus of the investigation and subsequent prosecution. In addition, petitioner has not offered any grounds that the district attorney's office made decisions about whether to prosecute assaults based on sex. It seems self-evident to point out that the victim by herself cannot constitute a control group against which to measure prosecutorial decisions. Appellate counsel was not ineffective for failing to raise this frivolous claim. See Miller, 882 F.2d at 1434 n9.


In sum, petitioner is not entitled to federal habeas corpus relief because he has not demonstrated either that his attorney acted unreasonably by not raising these issues on appeal, or that the failure to raise these issues prejudiced his appeal. And it certainly cannot be said that the state court's rejection of petitioner's claims was contrary to, or involved an unreasonable application of, Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). The petition for a writ of habeas corpus is DENIED.

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



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