United States District Court, N.D. California
March 11, 2004.
ADRIAN K. MITCHELL, Petitioner,
ROBERT AYERS, JR, Respondent
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS;
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Adrian K. Mitchell ("petitioner"), a California prisoner proceeding
pro se, filed this habeas corpus petition pursuant to
28 U.S.C. § 2254. After the petition was dismissed with leave to
amend, petitioner filed an amended petition containing five cognizable
claims for relief.*fn1
The Court ordered respondent to show cause why the
petition should not be granted. Respondent filed an answer supported by
a memorandum and exhibits, contending that the petition should be denied,
and petitioner filed a traverse.
On November 21, 2002, the Court ordered an evidentiary hearing to
resolve petitioner's claim that his Sixth Amendment right to the
effective assistance of counsel was violated insofar as counsel failed to
investigate and call Charles Mitchell,*fn2 as a
witness.*fn3 An evidentiary hearing was held on March 1, 2004 and
the matter was argued on March 2, 2004. Petitioner was represented by
counsel at both proceedings. At the hearing, petitioner presented the
testimony of six witnesses, including himself, and numerous exhibits were
entered into evidence. The parties also filed a number of stipulations
prior to the hearing and entered into others during the hearing.
In 1998, a jury in Alameda County Superior Court convicted petitioner
of first degree burglary based on his entry into the home of the Gonzalez
family in Oakland, California, in the early morning hours of November 17,
1996. Petitioner was sentenced to thirteen years in state prison. The
ineffective assistance of counsel claim at issue in this Court's
evidentiary hearing was not raised on direct appeal. Rather, it was
raised in a habeas petition in the state superior court and thereafter in
a habeas petition in the state appellate court. Both of these petitions
were summarily denied. Petitioner then presented the claim to the
California Supreme Court in a petition for direct review, which petition
likewise was summarily denied.
Members of the Gonzalez family testified that on November 17, 1996,
they were sleeping in their home in Oakland, California, when, at
approximately 2:00 a.m., they were awakened by petitioner.
Janneth Gonzalez testified that she was sleeping in the bedroom she
shared with her infant son and her sister Laura. The closet light had
been left on and the closet door was slightly ajar to provide light in
the room. Janneth awoke and heard someone running from
the kitchen. She saw petitioner run into the room and into the
closet and close the door. Janneth thought petitioner said, "Call the
police." Laura testified that she awoke and heard someone pulling down
some cassette tapes in the closet. She saw petitioner opening and closing
the closet door. Two or three times he told her, "Don't call the police."
Janneth testified that two days before the incident, a bag of cassette
tapes had been on the floor of the closet; Laura testified that on the
day of the incident itself, the tapes had been on the front edge of the
upper shelf of the closet.
Reynaldo Gonzalez ("Mr. Gonzalez"), Janneth and Laura's father,
testified that he was awakened by a loud noise; he went out into the
hallway where he met his daughters. They told him that a man was in their
bedroom closet. Mr. Gonzalez and his son Gerardo then entered the bedroom
and found petitioner in the closet. Petitioner was facing away and
appeared to be going through the clothes in the closet. Gerardo and Mr.
Gonzalez testified that petitioner tried to push his way past Mr.
Gonzalez, at which time Mr. Gonzalez restrained him and there was a
struggle. Mr. Gonzalez testified that petitioner then lifted a mattress
up in front of himself. Gerardo testified that petitioner initially said
several times, "Don't call the police" and that after the struggle
petitioner said, "Call the police." Eventually, petitioner stopped
resisting, and Mr. Gonzalez's brother-in law came in and guarded
petitioner with a knife while Gerardo called the police.
Both Mr. Gonzalez and Janneth testified that they did not hear any
knocking on the front door before petitioner entered the house.
Oakland Police Officer Frank Morrow ("Officer Morrow") testified that
when he arrived at the Gonzalez home, he noted that petitioner appeared
to be under the influence of a stimulant. Petitioner was sweating and
breathing hard; he said something like "They're chasing me"; and he
responded incoherently to Morrow's booking questions.*fn5 Morrow
testified that crack cocaine can induce paranoia and excitability. Other
one window through which petitioner entered, nothing in the home
Petitioner testified that he entered the Gonzalez house because he was
being chased by a man to whom he owed money. Petitioner testified that he
was addicted to crack cocaine and used heroin. He would sell drugs for
people he knew and, in exchange keep some of the drugs for himself.
Sometimes he would use all of the drugs instead of selling them and, as a
result, became indebted to various people; he had frequently been
threatened because of his debts. Petitioner had been using cocaine for
three days prior to his entry into the Gonzalez home. Petitioner further
testified that, at about 2:30 or 3:00 a.m. on the day of the alleged
burglary, a car with four black men inside pulled up beside petitioner
and someone inside said "Break yourself," meaning give up your money or
your drugs. Petitioner ran away, and although he did not look behind him,
he thought someone was chasing him because he heard a car door shut.
Petitioner ran onto the porch of the Gonzalez home and knocked loudly for
a few seconds but there was no answer. He looked back and did not see the
car. Because he still feared the men, however, he broke through a living
room window and fell into the house. He went into a bedroom closet in the
rear of the house to avoid gunfire and told someone to call the police.
He did not touch anything in the closet. Petitioner did not try to get
away from Mr. Gonzalez. He raised a mattress in front of himself as
protection from gunfire. He told the police that he was being chased.
Petitioner testified that he did not steal to buy drugs, and that he
did not need the money because he still had cocaine inside his mouth when
he entered the Gonzalez home, although he stated he swallowed it in the
police car. Petitioner's girlfriend testified that petitioner sometimes
used drugs and that when he did, he acted paranoid and scared.
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 (Terry) v. Taylor, 529 U.S. 362,
402-04, 409 (2000). "Under the `unreasonable application' clause, a
federal habeas court may grant the writ if the state court identifies the
correct governing legal principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the facts of the prisoner's
case." Id. at 412-13. The reasonableness inquiry under the
"unreasonable application" clause is objective. Id. at 409.
"`[O]bjectively unreasonable' [ ] means something more than merely
`incorrect or erroneous.'" Riley v. Payne, 352 F.3d 1313, 1323
(9th Cir. 2003) (citing Lockyer v. Andrade, 538 U.S. 63
When the state court's denial of a claim is unexplained, as is the case
here, a review of the record is the only means of deciding whether the
state court's decision was objectively reasonable. See Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003). When confronted with
such a decision, a federal court should conduct "an independent review of
the record" to determine whether the state court's decision was an
unreasonable application of clearly established federal law.
Id. "While [the federal courts] are not required to defer to a
state court's decision when that court gives [them] nothing to defer to,
[the federal courts] must still focus primarily on Supreme Court cases in
deciding whether the state court's resolution of the case constituted an
unreasonable application of clearly established federal law." Fisher
v. Roe, 263 F.3d 906, 914 (9th Cir. 2001).
Where a state court has not made a necessary factual finding, the
reviewing federal habeas court determines the facts de novo.
Wiggins v. Smith, 123 S.Ct. 2527, 2540 (2003). A summary state
court decision by a state court does not "implicitly" make any
factual findings in support of the decision. Fisher, 263
F.3d at 913.
After hearing the evidence presented in connection with the evidentiary
hearing in this matter, the Court makes the following factual findings.
Charles Mitchell testified credibly at the evidentiary hearing as to
his knowledge of the events leading up to petitioner's entry of the
Gonzalez home. In particular, Charles Mitchell testified credibly that he
spent time with petitioner on the night and early morning hours of
November 16-17, 1996 in an apartment located at 2555 Foothill Boulevard
in Oakland, California; that in the early morning hours of November 17,
1996, he saw petitioner standing outside the apartment building and saw a
car pull up in front of petitioner; that he heard someone yell from the
car, "Break yourself, Nigger," saw someone jump out of the car with a
black gun in his hand, and saw petitioner run away towards Irving Street.
Charles Mitchell also testified credibly that he and petitioner had been
using crack cocaine together earlier that day and that when petitioner
used drugs, he would get "kind of paranoid."
Any discrepancies between Charles Mitchell's description of these
events and petitioner's description pertained to relatively minor
matters*fn7 or were otherwise explainable. To the extent offered by
respondent for purposes of impeachment, the Court also considered Charles
Mitchell's criminal history. The impeaching value of those prior
convictions, however, is outweighed by a number of factors bearing on
credibility, including, inter alia, the witness's demeanor
while testifying and his lack of any apparent bias, interest or other
The Court also finds that petitioner's trial counsel, Martin Elmer
("Elmer") was informed both before and during the trial that Charles
Mitchell was a witness who could potentially corroborate petitioner's
testimony that he had been threatened and chased prior
to entering the Gonzalez home. In particular, the Court finds
credible petitioner's testimony that, at their initial interview on March
5, 1998, he told Elmer about the events that precipitated his entry into
the Gonzalez home, including the car and the threat, and that Charles
Mitchell was a witness to those events. Petitioner also testified
credibly that during the trial he informed Elmer that he had just seen
his corroborating witness, Charles Mitchell, in the holding cell. Elmer
testified, and provided a declaration, that he could not recall whether
petitioner had told him about Charles Mitchell. Although he further
testified to his belief that petitioner had not told him about a witness
to the events involving the threat, Elmer's recollection was based in
considerable part on his notes of his interview with petitioner and his
trial notebook. As Elmer conceded, the former were less than complete and
the latter had been destroyed. Additionally, prior to the trial and
independent of anything petitioner had reported to him, Elmer had
received a typed investigation request form prepared by one of
petitioner's prior attorneys, Kathryn Siegel, which stated that
petitioner had identified Charles Mitchell as a witness who saw
petitioner "totally loaded" and "running down the street" on the night of
the incident. It was stipulated that this document was in Elmer's file,
although Elmer had no recollection of having seen it.
The Court further finds that Elmer could have located Charles Mitchell
in time to produce his testimony at petitioner's trial. During the entire
course of petitioner's trial, which began on March 9, 1998 and concluded
on March 17, 1998, Charles Mitchell was housed in the Alameda County
Jail. Moreover, on March 11, 1998, the day the defense presented its
case, Charles Mitchell made a court appearance in the same courthouse in
which petitioner's trial was being conducted. The evidence was undisputed
that Charles Mitchell was in the court holding area along with petitioner
on March 11, 1998 and could have been located that day before the defense
Additionally, the Court finds that, at all relevant times before and
during petitioner's trial, Charles Mitchell was willing to testify as a
witness to the events of November 16-17. Charles Mitchell testified
credibly at the evidentiary hearing that he was
willing to testify at petitioner's trial in 1998. This testimony is
consistent with petitioner's testimony, also credible, that Charles
Mitchell had told him of his willingness to testify, both when they first
spoke in the Santa Rita jail facility in early 1997 and again when they
saw each other in the courthouse jail during petitioner's trial.
Respondent argues that Charles Mitchell, even if initially willing,
ultimately would not have testified at petitioner's trial, based on the
possibility of self-incrimination. Respondent's showing in this regard is
insufficient. Respondent essentially asks the Court to speculate as to
all manner of events pertaining to proceedings in the trial court and
predict their outcome in a manner consistent with respondent's argument.
The Court declines to do so, particularly in light of petitioner's
showing, albeit equally speculative, to the contrary. More importantly,
the Court gives credence to Charles Mitchell's testimony, under rigorous
cross-examination, that he would in fact have testified. In sum, the
Court finds Charles Mitchell, if called as a witness at petitioner's
trial, would have testified, in accordance with his testimony at the
evidentiary hearing, to having witnessed the threat to petitioner,
petitioner's running away in reaction thereto, and any other relevant
matters of which he had knowledge.
A claim of ineffective assistance of counsel is cognizable as a claim
of denial of the Sixth Amendment right to counsel, which guarantees not
only assistance, but effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth
Amendment ineffectiveness 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. See id. at
688. In that regard, the relevant inquiry is not what defense counsel
could have presented, but rather whether the choices made by defense
counsel were reasonable. See Babbitt v. Calderon,
151 F.3d 1170, 1173 (9th Cir. 1998). 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" Strickland, 466 U.S. at 694. "A
reasonable probability is a probability sufficient to undermine
confidence in the outcome." Id.
Generally, trial counsel has the "duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary." Id. at 688. "Strategic choices
made after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the limitations
on investigation." Id. at 690-91. It is true that if an
attorney is not aware of facts that would alert him to the need to
conduct a particular investigation, a failure to investigate is not
deficient performance. Alcala v. Woodford, 334 F.3d 862, 893
(9th Cir. 2003). In this case, however, Elmer was aware that Charles
Mitchell was a potential witness to the events occurring shortly before
petitioner entered the Gonzalez home. The investigation request form
prepared by Kathryn Siegel alerted Elmer to the fact that petitioner had
stated that a man named Charles Mitchell had seen petitioner "totally
loaded" and "running down the street," and petitioner himself told Elmer
both before and during trial that Charles Mitchell could corroborate his
account of the events preceding his entry into the Gonzalez home. Once he
was made aware that Charles Mitchell was a witness to these events, Elmer
was obligated to follow up with him to determine what he would say and
whether he could give credible testimony in support of the defense.
See, e.g., Riley, 352 F.3d at 1319.
Of course, the Sixth Amendment does not require counsel to interview
every possible witness. See LaGrand v. Sterwart, 133 F.3d 1253,
1274 (9th Cir. 1998) (holding performance not ineffective where trial
counsel reviewed transcripts of interviews conducted by others). Judicial
scrutiny "must be highly deferential," and a court "must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Strickland, 466 U.S. at
689. Nevertheless, where no interview has taken place and "where (as
here) a lawyer does not put a witness on the stand, his decision will be
entitled to less deference than if he interviews the witness." See
Lord v. Wood, 184 F.3d 1083, 1095 n.8 (9th Cir. 1999). "The reason
for this is simple: A lawyer who interviews the witness can rely on his
assessment of their articulateness and
demeanor factors that [the courts] are not in a position to
second-guess." Id. Here, Elmer never made an assessment of
Charles Mitchell as a witness nor did he make a tactical decision as to
whether he should be called to testify. As a result, his failure to
interview or call Charles Mitchell as a witness is not entitled to the
deference normally accorded informed trial strategy.
In its order of November 21, 2002, the Court cited several cases in
which the Ninth Circuit found that counsel's failure to interview a
corroborative defense witness violated the petitioner's Sixth Amendment
rights. See, e.g., Luna v. Cambra, 306 F.3d 954,
961-67 (9th Cir. 2002) (finding deficient performance and prejudice where
counsel failed to investigate and present testimony of corroborating
alibi witnesses where defendant's only defense was his own testimony that
he was home asleep at the time of the crime); Brown v. Myers,
137 F.3d 1154, 1157 (9th Cir. 1998) (finding failure to investigate and
present alibi witnesses to be deficient performance and prejudicial
where, without corroborating witnesses, defendant's defense rested only
on his own bare testimony); Lord v. Wood, 184 F.3d at 1093-96
(finding deficient performance where counsel failed to personally
interview and put on the stand three possible alibi witnesses who would
have testified that they saw the victim alive the day after she
purportedly was murdered). After this Court issued its order, the Ninth
Circuit issued its opinion in Riley v. Payne, 352 F.3d 1313, a
case in which the circumstances even more closely resemble those
presented by the instant case.
In Riley, the Ninth Circuit found the petitioner's attorney
was objectively unreasonable in failing to interview an eyewitness to the
events leading up to the shooting upon which the petitioner's assault
conviction was predicated. See id. at 1319. There, the
petitioner, Riley, claimed he had acted in self-defense. See
id. at 1315-16. In particular, he testified that the victim of the
shooting had verbally threatened to shoot him just prior to his shooting
the victim. See id. Before the trial, Riley had informed his
attorney that a friend, Pettis, was with him at the time the dispute
erupted. See id. at 1319. In connection with the habeas
proceedings, Pettis submitted a declaration that if had he been called as
witness, he would have corroborated Riley's testimony that Riley
had not approached the victim with his gun drawn and that the victim had
become angry and threatened Riley. See id. at 1317-18.
Significantly, Pettis also stated that he ran away and, as a result, did
not observe the events immediately preceding the shooting. See
id. The Ninth Circuit nonetheless found Pettis to a "critical
witness to lend credibility to Riley's story," see id. at 1320,
and that "[i]t should have appeared to a reasonable defense counsel that
Pettis's testimony might bolster Riley's tale," id. at 1319.
Here, as did Riley, petitioner relied on a single theory of defense. He
consistently claimed to the Gonzalez family, to the police, to
his attorneys, and in his testimony at trial that he did not
enter the Gonzalez home to commit a felony, but to escape from
individuals who were threatening his life. Whether, the threat was
actually made, or only perceived by petitioner in a drug-induced paranoid
reaction to an otherwise benign act, Charles Mitchell, as a witness to
that event, was exceedingly important to the defense. Without Charles
Mitchell, the only evidence presented in petitioner's trial in support of
either explanation was petitioner's own uncorroborated testimony. Any
potential evidence consistent with his testimony that he ran to the
Gonzalez home in a state of fear was therefore "critical." See
id. at 1320 ("Pettis was a critical witness to lend credibility to
Riley's story. . . . Pettis's testimony would have been consistent with
[Riley's] account and would have created more equilibrium in the evidence
presented to the jury.") (internal quotations and citations omitted). As
in Riley, "without any corroborating witnesses, [petitioner's] bare
testimony left him without any effective defense." See id.
(internal quotation and citation omitted). Under such circumstances,
Elmer's failure to interview Charles Mitchell and to call him as a
witness was objectively unreasonable.*fn8
The Court next must evaluate, under the standard set forth in
Elmer's errors were prejudicial. Prejudice exists if there is a
reasonable probability that, but for counsel's failure to interview or
call Charles Mitchell, the result of the proceeding would have been
different. See Strickland, 466 U.S. at 694; Riley,
352 F.3d at 1321. To establish prejudice caused by the failure to call a
witness, a petitioner must show that the witness was likely to have been
available to testify, that the witness would have given the proffered
testimony, and that the witnesses' testimony created a reasonable
probability that the jury would have reached a verdict more favorable to
the petitioner. Alcala, 334 F.3d at 872-73.
Here, if Elmer had interviewed Charles Mitchell, he would have learned
that Charles Mitchell had seen a car pull up in front of petitioner, had
seen its occupants threaten petitioner, and had seen petitioner running
off in the direction of the Gonzalez home. Additionally, Elmer would have
learned that Charles Mitchell had seen petitioner using drugs and acting
paranoid that night. The Court has found as a factual matter that Charles
Mitchell was available to testify at petitioner's trial before the
defense rested, and that if Elmer had called him, he would have provided
the foregoing testimony at petitioner's trial.
This was a close case in which the jury deliberated for an entire day
after receiving only one and half days of evidence. As noted in the
Court's order of November 21, 2002, the prosecution's evidence
demonstrating petitioner's intent to steal was relatively slim. As a
result, it cannot be said that Charles Mitchell's corroboration of
petitioner's testimony would have had an insignificant effect on the
jury's evaluation of that evidence. On the other hand, given the absence
of any evidence supporting petitioner's testimony as to the threat, it
cannot be said that Charles Mitchell's testimony would have been merely
cumulative of other evidence offered by the defense. Rather, Charles
Mitchell was "a critical witness to lend credibility" to petitioner's
story, and his testimony "would have created more equilibrium in the
evidence presented to the jury." See Riley, 352 F.3d at 1320
(internal quotation and citation omitted). Under such circumstances, as
in Riley, there is a reasonable probability that the outcome of
the case would have been different if
the missing testimony had been presented. See id. at
1321. Specifically, had the jury heard a witness corroborate petitioner's
account of his having been threatened and chased, there is a reasonable
probability that they would not have found that he entered the Gonzalez
home with the intent to steal.
In order to grant habeas relief, however, the Court must find more than
a prejudicial deficiency in the representation petitioner received.
Rather, "because of the important role that state courts play in applying
federal constitutional guarantees and because of federalism concerns,"
the Court must further find, as noted above, that the state court's
denial of petitioner's claim of ineffective assistance of counsel was
"objectively unreasonable" within the meaning of
28 U.S.C. § 2254(d)(1). See id. at 1323.
Here, Charles Mitchell was an available witness who would have
corroborated petitioner's otherwise uncorroborated testimony as to the
reason petitioner entered the Gonzalez home, specifically, that he did so
out of fear for his safety and not for the purpose of committing theft.
For all of the reasons discussed above, the potential impact of Charles
Mitchell's testimony was so great that one cannot describe as "merely
incorrect or erroneous," the state court's determination that counsel's
failure to interview or call Charles Mitchell as a witness either
constituted reasonable performance or was not prejudicial to petitioner.
See id. Consequently, this Court concludes that "even under the
narrow constraint of [its] review under AEDPA and the Supreme Court's
precedent," see id., the state court's denial of petitioner's
claim of ineffective assistance of counsel was an objectively
unreasonable application of federal law as set forth in
Accordingly, petitioner is entitled to habeas relief.
In light of the foregoing, the petition for a writ of habeas corpus is
hereby GRANTED. Respondent shall release petitioner from custody, unless,
with thirty days of the filing of this order and entry of judgment
thereon, respondent has filed an appeal with the United States Court of
Appeals for the Ninth Circuit or the State has set a date for a new
Petitioner's request for immediate release is hereby DENIED.
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
(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
IT IS SO ORDERED AND ADJUDGED that pursuant to the Order
Granting Petition for Writ of Habeas Corpus, judgement is entered in
favor of petitioner.