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WILLIAMS v. RYAN

United States District Court, S.D. California


September 28, 2005.

TASHION WILLIAMS, Petitioner,
v.
S.J. RYAN, Warden, et al., Respondents.

The opinion of the court was delivered by: ANTHONY BATTAGLIA, Magistrate Judge

REPORT AND RECOMMENDATION RE DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
I. INTRODUCTION
Petitioner Tashion Williams ("Williams" or "Petitioner") challenges his San Diego Superior Court conviction in case number CD150358 with a habeas corpus petition, pursuant to 28 U.S.C. § 2254. The Court submits this Report and Recommendation to United States District Judge Napoleon Jones, Jr. pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.

The Court has considered the Petition, Respondent's Answer, Petitioner's Traverse and all the supporting documents submitted by the parties. Based upon the documents presented in this case, and for the reasons set forth below, the Court recommends the Petition be DENIED.

  II. FACTUAL BACKGROUND

  The following statement of facts is taken from the California Court of Appeal opinion, People v. Johnson, et al.,*fn1 No. D038107, slip op. (Cal.Ct.App. Jan. 7, 2003). This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness).

 

Before noon on December 10, 1995, Honey George went to a taco shop with her boyfriend and victim Eddie Hamilton. Hamilton told George that "he owed somebody a lot of money," he was "real scared," and he "had to get off this side of town."
While George was sitting outside the taco shop, defendants approached her and asked whether she had seen Hamilton that day. George told the two men that Hamilton was in the taco shop. Williams and Johnson, who appeared agitated, then separated and walked down two different streets leading from the taco shop; they were "moving kind of fast." Approximately 15 or 20 minutes later, Hamilton was found stabbed to death near the taco shop.
At trial, several eyewitnesses testified as to what occurred during those 15 or 20 minutes. [Fn.1 Although these eyewitnesses described the conduct of the perpetrators, they did not specifically identify the defendants. However, the fact the defendants were the individuals who committed these acts was established through each of the eyewitness descriptions and defendants' later statements to police officers.] After leaving the taco shop, Hamilton walked towards a nearby trolley stop. Several minutes later, Williams and Johnson walked in the same direction, and then they suddenly both jumped and ducked behind a ledge. From behind the ledge, Williams "peeped around" the corner and watched as Hamilton returned and walked past the ledge. Williams and Johnson then "jump [ed] out at" Hamilton, and Williams "swung" at Hamilton. Williams and Johnson appeared angry at Hamilton and exchanged words with him. Hamilton started backing up with his hands in a defensive position, and then took off running down the street and alongside the trolley tracks. Williams and Johnson ran after Hamilton. Williams was "right on him," but Johnson was not running as fast and did not keep up with the other two.
As Williams was closing in on Hamilton, Williams had a large knife in his hand. Hamilton tripped and fell over a curb, and then lay on his back holding his hands up in the air with his palms facing outward in a defensive motion. Williams then "pounced" on Hamilton and, with an overhand motion, stabbed him deep in the stomach. At the time, Johnson was about 15 to 20 feet behind.
After Williams stabbed Hamilton, Hamilton staggered onto the middle of the street, holding his stomach. Williams and Johnson stood about 10 to 20 feet from Hamilton, waited for Hamilton to fall down, and then turned and walked away together side by side. As they were walking, Williams threw a knife over a fence. Williams and Johnson then "pick[ed] up more speed and took off" running around the corner.
A police officer who responded to a 911 call found Hamilton with a bruise to his lower abdomen area and his intestines partially exposed. Hamilton died shortly thereafter. The stab wound cut into Hamilton's small bowel, severed his abdominal aorta and nicked his spine. A knife containing Hamilton's blood was found in the location where witnesses described Williams having thrown the knife. Later, police officers seized from Williams's home a knife sheath and a newspaper article reporting the stabbing.
Four years later, on November 30, 1999, Williams was arrested on misdemeanor warrants, and was interviewed by police officers about the Hamilton stabbing. After waiving his Miranda rights, Williams admitted seeing Hamilton at the taco shop on the day of the murder. He initially said he saw Hamilton and another man fight outside the taco shop, but denied any involvement in the fight. Williams later revised his story, and stated that Hamilton was jealous of him, and pulled out a knife and began to swing at him and Johnson. A man named Kilo came to their aid and tried to take the knife away from Hamilton, and Kilo eventually stabbed Johnson.
Police officers also interviewed Johnson that same day. During that interview, Johnson said he was with Williams the day of the stabbing and that he confronted Hamilton at the taco shop because Hamilton owed him about $50. They got into a fight, but when Hamilton pulled out a knife, Johnson left the area and went home. Johnson did not know a person named Kilo and was not aware that Hamilton had been stabbed until much later.
Two months later, on January 27, 2000, police officers conducted another interview with Williams. After Williams waived his Miranda rights, Williams admitted stabbing Hamilton, but claimed he did so in self-defense. In this version, Williams stated that Hamilton began to argue with Williams. Hamilton rushed him and Johnson. Hamilton then pulled a knife on Williams, and Hamilton chased Williams and Johnson. Finally, they stopped running and Williams grabbed the knife from Hamilton, and inadvertently stabbed Hamilton. Williams threw the knife and ran.
Defendants were tried in a single trial with two different juries. The prosecution's theory at trial was that Williams stabbed Hamilton, and Johnson was liable on an aider and abettor theory. Although most of the evidence was presented to both juries, Williams's statements to the police were admitted only to the Williams jury and Johnson's statements to the police were admitted only to the Johnson jury. The court jointly instructed the juries, but closing arguments were made separately to each jury and each jury deliberated separately.
During his closing argument, Johnson's attorney admitted — consistent with Johnson's statements to the police — that on the day of the murder Johnson and Williams were the individuals who confronted Hamilton and that they did so to collect the money that Hamilton owed them. Johnson's attorney argued, however, that Johnson was not aware Williams had a knife and did not know or intend that Williams would fatally stab Hamilton. During his closing argument, Williams's attorney argued that Williams was not the person who stabbed Johnson, and urged the jury to find that Williams's admissions during police questioning were false because they were involuntary and coerced.
(Lodgment No. 5 at 2-6.) III. PROCEDURAL BACKGROUND

  On May 26, 2000 the San Diego County District Attorney's Office filed an Information charging Williams with murder (Cal. Penal Code § 187(a)), and conspiracy to commit murder (Cal. Penal Code § 182(a)(1)). (Lodgment No. 2, Vol. 1 at 1-2.) It was further alleged that in the course of the murder, Williams had personally used a deadly weapon (Cal. Penal Code § 12022(b)). (Id. at 1-3.) The Information also contained a "lying-in-wait" special circumstance allegation (Id. § 190.2). (Id.)

  A jury trial began on January 24, 2001. (Id., Vol. 2 at 343.) Williams and his co-defendant, Darnell Johnson, were tried together, but with separate juries. (See Lodgment No. 12, Vol. 2 at 15.) On February 9, 2001, the jury found Williams guilty of murder and found true the deadly weapon and lying-in-wait allegations. (Lodgment No. 2, Vol. 2 at 362-63, Vol. 3 at 559, 565.) The jury acquitted Williams of conspiracy to commit murder. (Id., Vol. 3 at 556.) On May 18, 2001, the trial court sentenced Williams to life in prison without the possibility of parole. (Id. at 603.)

  Williams appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One raising several claims. (Lodgment No. 3.) In one claim, Williams argued his second statement to police was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966) and should have been suppressed. He argued that his requests to speak to his father during questioning amounted to an invocation of his Miranda rights. (Id. at 19-28.) The Court of Appeal affirmed Williams's conviction in an unpublished opinion on January 7, 2003 (Lodgment No. 5), and denied his petition for rehearing on January 30, 2003. (Lodgment No. 7.)

  Williams filed a petition for review to the California Supreme Court on February 11, 2003, raising the same claims he had brought before the court of appeal. (Lodgment No. 8.) The supreme court denied the petition without comment or citation on March 26, 2003. (Lodgment No. 9.) On February 20, 2004, Williams filed a petition for writ of habeas corpus in the California Supreme Court. (Lodgment No. 10.) In his petition, Williams claimed his January 27, 2000 statement to police ("second statement") should have been suppressed because it was obtained in violation of the Fifth, Sixth and Fourteenth Amendments. He also argued he received ineffective assistance of trial and appellate counsel. (See id.) The court denied the petition without comment or citation on December 15, 2004. (Lodgment No. 11.)

  Williams filed his federal habeas corpus petition in this Court on December 30, 2004 [Doc. No. 1]. Respondent filed an Answer to the Petition on June 8, 2005 [Doc. No. 10]. Petitioner filed his Traverse on July 5, 2005 [Doc. No. 12]. In response to this Court's request, Respondent filed a Supplemental Lodgment on September 1, 2005. [Doc. No. 15].

  IV. SCOPE OF REVIEW

  Title 28, United States Code, § 2254(d), sets forth the following scope of review for federal habeas corpus claims:

d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.A. § 2254(d)(1)-(2) (West Supp. 2004).

  To obtain federal habeas relief, Petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 403 (2000). The Supreme Court interprets § 2254(d)(1) as follows:

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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Williams, 529 U.S. at 412-13; see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Lockyer, 538 U.S. at 75-76); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law.

  V. DISCUSSION

  In his Petition, Williams raises four claims:*fn2 (1) His second statement to police was obtained in violation of his Sixth Amendment right to counsel and Miranda; (2) The admission of his second statement to police was involuntary and therefore obtained in violation of due process; (3) He received ineffective assistance of trial counsel in violation of his Sixth Amendment rights; and (4) He received ineffective assistance of appellate counsel, also in violation of his Sixth Amendment rights. (See Pet. at 6-9.)

  A. Admission of January 27, 2000 Statements

  In claims one and two, Williams argues that the statement he made during his January 27, 2000 interview ("second statement") with police should have been suppressed at trial because it was obtained in violation of the Sixth, Fifth and Fourteenth Amendments. (See Pet. at 6-7, Pet. Ex. A at 27-31.) 1. Sixth Amendment Right to Counsel

  Williams claims that his second statement was obtained in violation of his Sixth Amendment right to counsel because he had informed police officers during a previous interview, which took place two months earlier, that he had an attorney. He argues that his Sixth Amendment right to counsel had attached and therefore officers were not permitted to question him on January 27, 2000. (See Pet. Ex. A at 27-29.)

  Williams raised this claim in his petition for writ of habeas corpus to the California Supreme Court. (Lodgment No. 10.) The court denied claim without comment or citation. (Lodgment No. 11.) Because the state court did not "furnish a basis for its reasoning," this Court must conduct an independent review of the record to determine whether the denial is contrary to, or an unreasonable application of, clearly established Supreme Court law. Himes, 336 F.3d at 853.

  The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const., amend. VI. "[T]he `core purpose' of the counsel guarantee is to assure aid at trial, `when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor.'" United States v. Gouveia, 467 U.S. 180, 189-90 (1984) (quoting United States v. Ash, 413 U.S. 300, 309 (1973)); Maine v. Moulton, 474 U.S. 159, 168-69 (1985).

  "The Sixth Amendment right [to counsel] . . . does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Texas v. Cobb, 532 U.S. 162, 167-68 (2001) (citations and internal quotation marks omitted); McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); Kirby v. Illinois, 406 U.S. 682, 688 (1972).

  Neither the issuance of an arrest warrant, Gouveia, 467 U.S. at 190; United States v. Pace, 833 F.2d 1307, 1312 (9th Cir. 1987), nor an ongoing attorney-client relationship triggers a Sixth Amendment right to counsel. Moran, 475 U.S. at 429-30 & n. 3. Furthermore, the Sixth Amendment right to counsel is offense specific, with no "exception for crimes that are `factually related' to a charged offense." Cobb, 532 U.S. at 168. As to those "other crimes, as to which the Sixth Amendment right has not yet attached, [incriminating statements] are, of course, admissible at a trial on those offenses." Moulton, 474 U.S. at 180 n. 16; McNeil, 501 U.S. at 176.

  Williams argues that his right to counsel attached during his first interview with police, which took place on November 30, 1999. Williams had been arrested that day on misdemeanor warrants unrelated to the murder of Eddie Hamilton. (See Lodgment No. 2, vol. 1 at 17.) While Williams was in custody, officers took the opportunity to question him about the Hamilton murder. (See generally id. at 15-57.) During this interview, Williams indicated that he had counsel, referring to his attorney twice. At the beginning of the interview, he told officers that he would be discussing the misdemeanor warrants with his attorney. (Id. at 17.) Near the end of the interview, Williams asked detectives whether there was "anything I need to give my lawyer or tell my lawyer or anything like that, ah, you know." (Id. at 57.)

  Williams argues that these references to his lawyer during the November interview, constituted an invocation of his right to counsel under the Sixth Amendment. Thus, he argues, officers were prohibited from approaching him for questioning two months later, in January, after he was arrested for Hamilton's murder. (See Pet. Ex. A at 27.)

  Williams's right to counsel as to the murder charges does not attach merely because Williams referred to an attorney during the November interview. As discussed above, the right to counsel is "offense specific." See Cobb, 532 U.S. at 168; see also McNeil, 501 U.S. at 176. The subject of the November interview was murder of Eddie Hamilton — not the misdemeanor charges Williams was facing at the time. At the time of the November interview, Williams had not been charged with, or arrested for, the Hamilton murder. Therefore, even assuming that "adversarial proceedings" had begun as to the misdemeanor charges, Williams right to counsel had not attached with regard to the murder. See id. Thus, Williams's references to a lawyer during the November interview have no bearing on his Sixth Amendment right to counsel as to the Hamilton murder case.

  Furthermore, Williams's Sixth Amendment right to counsel did not attach at any time prior to his questioning in January 2000. A defendant's right to counsel attaches only when "adversarial proceedings" are initiated. Cobb, 532 U.S. at 167-68. The Supreme Court has suggested that "adversarial proceeding" may begin "by way of formal charge, preliminary hearing, indictment, information, or arraignment." Id. In this case, a police officer filed a complaint and obtained a warrant for Williams's arrest on January 20, 2000. (Lodgment No. 13.) Williams was arrested and questioned one week later, on January 27 (Lodgment No. 2 at 58) and arraigned on January 31. (Lodgment No. 1.)

  It is not unreasonable for a state court to conclude that adversarial proceedings had not been initiated at time Williams was questioned. First, the issuance of the arrest warrant did not trigger Williams's right to counsel. See Gouveia, 467 U.S. at 190. Furthermore, the "filing [of a] complaint for an arrest warrant [is] not a prosecutorial act [because] the complaint is functus officio on petitioner's arrest." See Anderson v. Alameida, 397 F.3d 1175, 1180 (9th Cir. 2005) (citing People v. Bittaker, 48 Cal.3d 1046, 1071 (1989)). In Anderson, the Ninth Circuit determined that the California court's decision that "a police inspector filing a complaint seeking an arrest warrant is not a critical stage that commits the prosecutor to trial" was reasonable in light of clearly established law. Id. Likewise, here, it is reasonable to conclude that Williams's Sixth Amendment right to counsel had not attached at the time he was questioned. See id.; see also Pace, 833 F.3d at 1312 (holding that the filing of a complaint does not trigger the Sixth Amendment's right to counsel).

  Accordingly, the state court's denial of this claim was neither contrary to, nor an unreasonable application of clearly established law. Williams is therefore not entitled to relief as to this claim. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412-13.

  2. Miranda

  Williams also contends that the January statements were obtained in violation of his rights under the Fifth Amendment and Miranda. (See Pet. Ex. A at 27.) He appears to argue that he had invoked his Miranda rights during the November interview and therefore officers should not have reapproached him for questioning in January. (Id.)

  Williams raised this claim in his petition for habeas corpus to the California Supreme Court (Lodgment No. 10) and it was denied without comment or citation. (Lodgment No. 11.) Therefore, this Court must conduct an independent review of the record to determine whether the state court's denial was contrary to, or an unreasonable application of, clearly established Supreme Court law. See Himes, 336 F.3d at 853.

  It is clearly established that a suspect who is subject to custodial interrogation must be advised of his federal constitutional right to remain silent and his right to have an attorney present during questioning. Miranda v. Arizona, 384 U.S. 436 (1966). If the suspect invokes his right to counsel, "the interrogation must cease until an attorney is present." Id. at 474. A suspect who invokes his right to counsel after arrest "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with police," Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), and "knowingly and intelligently waives the right he previously invoked." Shedelbower v. Estelle, 885 F.2d 570, 573 (9th Cir. 1989) (citing Smith v. Illinois, 469 U.S. 91 (1984) (per curiam) and Oregon v. Bradshaw, 462 U.S. 1039, 1042-45 (1983)). A suspect's invocation of the right must be sufficiently unambiguous that "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis v. United States, 512 U.S. 452, 459 (1994).

  The state court's denial of Williams's claim was reasonable in light of this clearly established law. Williams waived his Miranda rights before the November interview and, although he mentioned a lawyer, he never suggested that he was his invoking his right to talk to this attorney at any time. (Lodgment No. 2, Vol. 1 at 18-20.) As discussed above, Williams merely mentioned that he would be discussing the details of his misdemeanor charges with a lawyer and, at the conclusion, asked officers if there was anything he should tell his lawyer. (See id. at 17, 57.) At no time did Williams indicate any desire to end the questioning and speak to an attorney. Therefore, Williams did not invoke his Miranda rights at during the November interview.

  Nor did Williams did invoke Miranda during the January interview. Williams waived his Miranda rights at the outset of the interview. (Id. at 60.) During the entire interrogation, Williams mentioned an attorney only once, stating "Yeah, talked to everybody in family [sic]. I talked to a lawyer about the whole thing because I, my mom's friend, you know he's a lawyer, such fourth [sic] or whatever and. . . ." (Id. at 117.) This statement in no way suggests that Williams was asking to end the questioning and speak to his lawyer. Accordingly, the Court finds Williams never attempted to invoke his rights under Miranda.*fn3 See Clark v. Murphy, 331 F.3d 1062, 1070, 1071 (9th Cir. 2003) (holding a state court's determination that defendant's statement "I think I would like to talk to a lawyer" was equivocal and therefore did not an invocation of his right to counsel was objectively reasonable under AEDPA's standard).

  Therefore, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, Miranda and its progeny. See id. Therefore, Williams is not entitled to relief as to this claim. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412-13.

  3. Due Process

  Williams also argues his second statement was involuntary and therefore obtained in violation of his due process rights. (See Pet. Ex. A at 29-31.) Williams raised this claim in his petition for habeas corpus to the California Supreme Court, and it was denied without comment or citation. (Lodgment Nos. 10 & 11.) Because the state court did not "furnish a basis for its reasoning," this Court must conduct an independent review of the record to determine whether the denial is contrary to, or an unreasonable application of, clearly established Supreme Court law. Himes, 336 F.3d at 853.

  Under the Fourteenth Amendment, a confession is involuntary only if the police use coercive means to undermine the suspect's ability to exercise his free will. See Colorado v. Connelly, 479 U.S. 157, 167 (1986); Derrick v. Peterson, 924 F.2d 813, 818 (9th Cir. 1990). A court must consider the totality of the circumstances, including factors such as "the surrounding circumstances and the combined effect of the entire course of the officers' conduct," to determine whether the confession was the product of the defendant's free will or whether his will was overborne. Id. (citing United States v. Polanco, 93 F.3d 555, 560 (9th Cir. 1996)); Henry v. Kernan, 197 F.3d 1021, 1026-27 (9th Cir. 1999) (citing Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir. 1991) (en banc)).

  The Supreme Court has required a high level of coercion in order to render a confession involuntary. See e.g. Mincey v. Arizona, 437 U.S. 385 (1978) (finding a confession to be involuntary where defendant, while hospitalized and sedated in intensive care, was interrogated for four hours); Greenwald v. Wisconsin, 390 U.S. 519 (1968) (finding a confession to be involuntary where a medicated defendant was questioned for over eighteen hours and was deprived of food and sleep); Beecher v. Alabama, 389 U.S. 35 (1967) (finding a confession to be involuntary where police officers held a gun to defendant's head).

  There was no such coercion here. The interview was conducted in the afternoon and lasted only one and one-half hours. (See Lodgment No. 2 at 58.) While the officers, at times, pointed out the seriousness of Williams's situation (see id. at 71), they did not threaten Williams. Indeed, the general tone of the interview was professional and non-confrontational. (See generally id. 77-78, 100-116.) Officers did nothing more the press Williams to tell them the entire story and challenge him regarding inconsistencies with his previous statement. (See generally id. at 77, 93, 100.) The transcript of the interview reveals that Williams remained in control of his responses and there is simply nothing to suggest Williams's will was "overborne." See Connelly, 479 U.S. at 167.

  Accordingly, the state court's denial of Williams's claim was neither contrary to, nor an unreasonable application of, clearly established law. Williams is not entitled to relief as to this claim. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412-13.

  B. Ineffective Assistance of Trial Counsel

  Williams claims he received ineffective assistance of trial counsel when counsel failed to argue that the admission of the January 27, 2000 statements violated of his Sixth Amendment right to counsel. (See Pet. at 18, 24.) Williams raised this claim in his petition for writ of habeas corpus to the California Supreme Court. (Lodgment No. 10.) The court denied claim without comment or citation. (See Lodgment No. 11.) Because the state court did not "furnish a basis for its reasoning," this Court must conduct an independent review of the record to determine whether the denial is contrary to, or an unreasonable application of, clearly established Supreme Court law. Himes, 336 F.3d at 853.

  The clearly established Supreme Court law regarding ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668, 688 (1984). Strickland requires a two-part showing. First, an attorney's representation must have fallen below an objective standard of reasonableness. Id. at 688. Second, a defendant must have been prejudiced by counsel's errors. Id. at 694. Prejudice can be demonstrated by a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; see also Fretwell v. Lockhart, 506 U.S. 364, 372 (1993). The Ninth Circuit has held that failure to file a motion will not constitute ineffective assistance of counsel unless the trial court would have granted the motion. Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999).

  In this case, Williams's trial counsel moved to suppress his second statement, arguing it was obtained in violation of Miranda and California stat law. (See Lodgment No. 12, Vol. 3 at 495-502.) Specifically, trial counsel argued that Williams's requests to speak to his father constituted an invocation of his Miranda rights. (See id.) Trial counsel did not, however, argue that the statement was obtained in violation of Williams's Sixth Amendment right to counsel.

  Williams cannot show that trial counsel's failure to file such a motion constituted a deficient performance or was prejudicial. The Ninth Circuit has denied habeas relief on similar ineffective assistance of counsel claim. See Anderson, 397 F.3d at 1180. In Anderson, the petitioner argued that his right to counsel had attached when a complaint was filed against him in California. Thus, he argued his attorney's failure to move to suppress his subsequent confession on Sixth Amendment grounds amounted to ineffective assistance of counsel. The Ninth Circuit denied habeas relief, concluding the petitioner could not show his motion to suppress would have been granted. Id. at 1180-81. The same is true here. For the reasons discussed Section V(A)(1) of this Report and Recommendation, Williams cannot show that a motion to suppress based on his Sixth Amendment right to counsel would have been granted. See id.; see also Pace, 833 F.3d at 1312 (holding that the filing of a complaint does not trigger the Sixth Amendment's right to counsel).

  Accordingly, the state court's rejection of this claim was neither contrary, nor an unreasonable application of clearly established law. See Strickland, 466 U.S. at 686-89. Williams is not entitled to relief as to this claim. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412-13.

  C. Ineffective Assistance of Appellate Counsel

  Finally, Williams asserts his appellate counsel was ineffective because he failed to "effectively review the record on appeal" and failed to "raise all the appealable issues." (See Pet. Ex. A at 24.)

  Williams raised this claim in his petition for writ of habeas corpus to the California Supreme Court and it was denied. (Lodgments No. 10 & 11.) Because that court did not "furnish a basis for its reasoning," this Court must conduct an independent review of the record to determine whether the denial is contrary to, or an unreasonable application of, clearly established Supreme Court law. Himes, 336 F.3d at 853.

  "The proper standard for evaluating [a] claim that appellate counsel was ineffective . . . is that enunciated in Strickland." Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Smith v. Murray, 477 U.S. 527, 535-36 (1986)). A petitioner must first show that his appellate counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. He must then establish he was prejudiced by counsel's errors. Id. at 694. To establish prejudice, a petitioner must demonstrate that he would have prevailed on appeal absent counsel's errors. Smith, 528 U.S. at 285.

  The Ninth Circuit has observed that

[Strickland's] two prongs partially overlap when evaluating the performance of appellate counsel. In many instances, appellate counsel will fail to raise an issue because she foresees little or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. . . . Appellate counsel will therefore frequently remain above an objective standard of competence (prong one) and have caused her client no prejudice (prong two) for the same reason-because she declined to raise a weak issue.
Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).

  Williams claims that his appellate counsel failed to "effectively review the record" and failed to raise (and preserve) all appealable issues. (Pet. at 24.) Petitioner fails, however, to provide any facts to support his claim. He makes no specific allegations regarding what appealable issues he asserts should have been raised by appellate counsel, but were not.*fn4 Conclusory allegations such as these do not warrant habeas relief. Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995). Accordingly, Williams has cannot establish that his appellate attorney's representation fell below an objective standard of reasonableness, or that he was prejudiced by his attorney's actions. See id. at 205; see Strickland, 466 U.S. at 686-89. Williams is therefore not entitled to relief as to this claim. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412-13.

  VI. CONCLUSION AND RECOMMENDATION

  For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation, and (2) directing that Judgment be entered denying the Petition.

  IT IS ORDERED that no later than November 4, 2005, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than November 24, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).

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