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United States District Court, S.D. California

October 6, 2005.

JEANNE S. WOODFORD, Director of the California Department of Corrections Respondent.

The opinion of the court was delivered by: LOUISA PORTER, Magistrate Judge

I. Introduction
Michael Delano Adams, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28, United States Code, section 2254. He challenges his San Diego Superior Court conviction for second degree murder on three grounds: (1) denial of his Sixth Amendment right to effective assistance of counsel when the trial court allegedly erred by denying his substitution of counsel motion under People v. Marsden, 465 P.2d 44 (1970); (2) the trial court failed to instruct the jury pursuant to California Jury Instruction, Criminal 17.01, which required the jury to unanimously agree on the act or acts Petitioner committed that supported his conviction of second degree murder; and (3) the allegedly inadequate performance of his trial counsel resulted in a violation of his right to due process and his Sixth Amendment right to effective assistance of counsel. (Docket Nos. 1, 12, 23.)

The Court has considered the Petition, Respondent's Answer and Memorandum of Points and Authorities, Petitioner's Traverse and all the supporting documents submitted by the parties. Based upon the documents and evidence presented in this case, and for the reasons set forth below, the Court recommends that the Petition be DENIED and the case be dismissed with prejudice.

  II. Statement of Facts

  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). In the present case, Petitioner has not attempted to rebut the factual findings made by the state court.*fn1 The following facts, therefore, are taken verbatim from the California Court of Appeal's opinion in Petitioner's case.


  A. Prosecution's Case


On January 18, 1999, Robert Stratton and [Petitioner] Adams went to the Chee-Chee Club, where Byron Peterson introduced himself to the men and joined them for cocktails. The men were overheard talking about having sex. Later, the three left the bar and drove together in Stratton's recreational vehicle ("RV") to a liquor store.
Sometime later, Richard Cowan, an acquaintance of Adams, saw Adams and Peterson standing next to Stratton's RV. Cowan offered Adams $10 to drive him to a check-cashing establishment. Adams agreed but adamantly refused to take Cowan's friend Joe. On entering the vehicle, Cowan noticed Stratton's body on the floor. Adams and Peterson told Cowan that Stratton had passed out. Peterson then dragged Stratton to the back of the RV.
When the check-cashing establishment refused to cash Cowan's check, the men drove the RV to an apartment complex. Adams removed a television and VCR from the vehicle and sold them at the complex. Adams was nervous during the sale. While Adams was selling the electronic equipment, Cowan walked to the back of the RV to use the toilet. As he walked through the RV, he tripped over Stratton. Cowan noticed Stratton's hands were tied behind his back with a belt and that he was dead. When Adams returned, Cowan asked him what was "up." Adams and Peterson suggested the men keep the matter to themselves. Cowan stated he was leaving, got out of the RV and called the police.
When officers responded, Adams and Peterson were still in the vehicle. The police ordered them out, entered the RV and found Stratton's body. The officers noted Adams had a three-inch long red scrape on his forearm and a scratch on his back.
Stratton died from blunt-force trauma and asphyxia due to strangulation. At the time of his death Stratton was 69 years old. B. Adams' Defense
Adams testified he and Stratton introduced themselves to Peterson at the Chee Chee Club. Stratton was "smitten" with Peterson. After the men used cocaine in the RV they decided to purchase more cocaine and then go to Sunset Cliffs. Before doing so Stratton used more cocaine and became paranoid. Adams told him everything was alright. When Stratton tripped trying to leave the vehicle, Adams and Peterson pulled him back in. With Stratton's consent Adams took the keys and started to drive. Peterson straddled Stratton and the two fondled each other and kissed for a few seconds. Adams drove to a nearby liquor store. Leaving Stratton and Peterson in the vehicle, Adams went into the store, purchased liquor and then returned. Adams stated Stratton was alive when the men drove away from the store.
As Adams drove to a second location to buy drugs, Stratton and Peterson remained seated on the floor of the RV. Adams heard movement, sounds and coversation but did not know if what began as sex play had become violent. Adams testified he did not see Peterson hitting Stratton. When Adams stopped to buy drugs, Stratton was snoring and appeared to be alright.
  As Adams left the vehicle, he ran into his friend Cowan. Adams and Cowan purchased drugs, then returned to the RV. Stratton was on the floor asleep and snoring.


Adams then drove the RV to a check-cashing establishment. During the drive Cowan moved from the front of the vehicle to the rear. When they stopped, Cowan returned to the front and he and Adams went into the check-cashing establishment. After 15 to 20 minutes the two men returned to the vehicle. Peterson was talking to a third man, Freddie. Freddie got into the vehicle and the men drove to an apartment nearby to buy drugs. Adams removed a VCR from the RV to exchange it for drugs. Freddie and Adams took the VCR to an apartment. Adams then returned to the RV to get a television and the cable to connect the VCR to it. Peterson and Cowan were standing over Stratton. Cowan told Adams that Stratton was dead. Adams asked Cowan what was happening. Cowan stated he did not know and that he was leaving. Cowan left. Peterson suggested they rub their fingerprints off of everything in the RV. A few moments later the police arrived.
Adams denied doing anything that would have caused Stratton's death. Adams conceded on cross-examination that he had told a variety of inconsistent stories concerning what happened the night of Stratton's death. In some of those stories Adams stated that Peterson threw Stratton to the ground and beat him.
C. Peterson's Defense
Peterson testified he went to the Chee Chee Club, became drunk and met Adams and Stratton. Peterson testified he was not gay and did nothing that evening to lead the men to believe he was interested in having sex with them. Eventually, the three men began driving about in Stratton's RV. During the evening Adams and Stratton argued repeatedly. After the men left a liquor store, the argument became physical and Stratton slapped Adams numerous times in the face. Stratton tried to leave the vehicle but Adams pulled him back inside. Adams knocked Stratton to the floor. He held Stratton's hands together and told Peterson to help him. Peterson wrapped a belt around Stratton's hands. As Peterson walked to the front of the RV, he kicked Stratton once in the chest and once in the leg. Peterson stated Stratton was still alive when he bound his wrists. Stratton got off the floor and continued to fight but was unable to hit Adams because his hands were bound. Peterson stated Adams strangled Stratton for two to three minutes. After Adams threw him against a wall, Stratton ceased resisting and fell to the floor. Peterson believed Stratton was merely knocked out. Peterson confirmed the general chronology of events described by Cowan and Adams. Peterson stated he only discovered Stratton was dead when Cowan announced that fact later in the evening.
Jail inmate Jason Pollock testified that while he was in a holding cell with Peterson, Adams attempted to intimidate Peterson into taking responsibility for the crime. Adams admitted he argued with Stratton over money, drugs and jealousy and grabbed Stratton by the neck and choked him.
(Lodgment No. 1 at 2-6.)

  III. State Court Proceedings

  On November 15, 1999, a jury convicted Petitioner of second degree murder in violation of Cal. Penal Code section 187(a) (West 2005) and found co-defendant Peterson guilty of involuntary manslaughter in violation of Cal. Penal Code section 192(b). (Lodgment No. 7 at 993, 995.) Additionally, both Petitioner and Peterson were found guilty of proximately causing the death of a senior citizen within the meaning of Cal. Penal Code section 368(b)(3)(A) (West 2005). Petitioner was sentenced to a term of 20 years to life, including fifteen years for the murder conviction plus five years sentencing enhancement for the allegation under Cal. Penal Code section 368(b)(3)(A). (Lodgment No. 7 at 1014.)

  Petitioner appealed to the California Court of Appeal, District Four, Division One. (Lodgment No. 1 at 2.) In his appeal, Petitioner argued (1) that the evidence was insufficient to support a true finding on the killing of an elderly person allegation; (2) that the trial court erred in failing to instruct the jury in the terms of California Jury Instruction, Criminal ("CALJIC") No. 17.01, that a unanimous jury agreement was required concerning the act resulting in death; and (3) that the trial court erred in denying Petitioner's Marsden motion. (Lodgment No. 1 at 2.) On November 21, 2001, the Court of Appeal affirmed the second degree murder conviction but struck down the Cal. Penal Code section 368(b)(3)(A) enhancements in a reasoned decision. (Lodgment No. 1 at 19.)

  On March 11, 2002, Petitioner sought review of the Court of Appeal's decision. (Lodgment No. 3 at 2.) On July 10, 2002, the California Supreme Court denied the petition en banc without comment. (Lodgment No. 3 at 1.)

  Subsequently, on July 30, 2003, Petitioner filed a second appeal in the California Supreme Court, arguing ineffective assistance of trial counsel. (Lodgment No. 4 at 3.) On April 14, 2004, the California Supreme Court denied the petition en banc, citing In re Clark, 855 P.2d 729 (1993). (Lodgment No. 5.)

  IV. Federal Court Proceedings

  Petitioner filed the current Petition for Writ of Habeas Corpus on April 21, 2003, which he amended on August 5, 2003 and on May 3, 2004, asserting three grounds for relief: (1) denial of his Sixth Amendment right to effective assistance of counsel when the trial court allegedly erred by denying his Marsden motion; (2) the trial court failed to instruct the jury pursuant to CALJIC 17.01, which required the jury to unanimously agree on the act or acts Petitioner committed that supported his conviction of second degree murder; and (3) the allegedly inadequate performance of his trial counsel resulted in a violation of his right to due process and his Sixth Amendment right to effective assistance of counsel. (Docket Nos. 1, 12, 23.) On July 29, 2004, Respondent filed an Answer to the Petition. (Docket No. 30.) Petitioner filed a Traverse to Respondent's Answer on October 18, 2004. (Docket No. 42.)

  V. Scope of Review

  Title 28 U.S.C. section 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on 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) (West 1994).

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to habeas corpus petitions filed after 1996. Lindh v. Murphy, 521 U.S. 320 (1997). The current petition was filed on April 21, 2003, and is governed by the AEDPA. As amended, 28 U.S.C. section 2254(d) now reads:

(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 State court proceeding.
28 U.S.C.A. § 2254(d) (West Supp. 2001).

  To obtain federal habeas relief, Petitioner must satisfy either section 2254(d)(1) or section 2254(d)(2). Williams v. Taylor, 529 U.S. 362, 403 (2000). The Supreme Court interprets section 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 decided 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 412-413.

  The AEDPA also requires deference be given to state court findings of fact, with state court factual determinations presumed correct unless the petitioner rebuts them by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (West Supp. 2001). Although claims under section 2254(d)(2) are rare, perhaps because of this deferential standard, a state court decision may be found to be "based on an unreasonable determination of the facts in light of the evidence presented" if it "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), overruled on other grounds by Lindh, 521 U.S. at 320.

  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, 803 (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 clearly erred in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

  In this case, the California Supreme Court denied review of the opinion of the California Court of Appeal without comment. Therefore, this Court shall look to the opinion of the California Court of Appeal in reviewing Petitioner's federal habeas claims. Nunnemaker, 501 U.S. at 801-06.

  VI. Discussion

  Petitioner raises three claims in his federal petition. First, he contends his Sixth Amendment right to effective counsel was violated when the trial court erroneously denied his motion to substitute counsel under Marsden.*fn2 (1st Amended Petition at 1.) Second, Petitioner claims the trial court erred when it failed to instruct the jury pursuant to CALJIC 17.01, that the jury unanimously agree on the act or acts appellant committed that supported his conviction of second degree murder. (Id. at 19.) Finally, Petitioner contends that his trial counsel was ineffective because he declined to make an opening statement and because he did not ask the jury for a verdict of not guilty or a specific verdict on one of the charges during closing arguments. (2nd Amend. Pet. at 3.)

  A. Denial of Marsden Motion

  Petitioner contends that, after holding a hearing on the issue, the trial court abused its discretion by denying Petitioner's motion for substitution of counsel under Marsden. This alleged abuse of discretion, according to Petitioner, violated his right to effective assistance of counsel under the Sixth Amendment. (1st Amend. Pet. at 16.) The state Court of Appeal provides the factual background:

Adam's preliminary hearing was held on March 2, 1999. Arraignment occurred on March 16, 1999, and trial was set for June 7, 1999. At arraignment Adam's defense counsel, Gilbert Newton, indicated he would seek a continuance of the trial date.
On March 17, 1999, Newton sent a letter along with notes on the police interview of co-defendant Peterson to Adams. The letter noted Peterson's interview inculpated both Peterson and Adams. Newton advised Adams he was charged with first degree murder with special circumstances and if convicted the sentence was life in prison without the possibility of parole. Newton stated the situation "at present" was very bad. Newton asked Adams to explain when the two met at jail why he did nothing to keep the victim from dying. He noted the jury would need to hear Adams's explanation. Newton also included with the letter CALJIC instructions on second degree murder and second degree felony murder.
Adams did not react well to Newton's missive. On March 24, 1999, Adams wrote Newton, stating that he did not believe he was interested in finding the truth and had too eagerly accepted Peterson's version of events. Adams was angry that Newton was asking for an explanation as to why he did nothing to keep the victim from dying. Adams explained he did not know the victim was dying. Adams also stated Newton seemed reluctant to pursue the possibility that Cowan was the killer. Adams protested his innocence and stated that Newton did not care. Adams stated Newton might be a good lawyer but Adams believed he was allowing his conclusion that Adams was guilty to get in the way of his professional duties. Adams also stated that it had taken great "gall" for Newton to send him copies of the law on second degree murder. Adams reiterated that he was not guilty. Adams stated he would make a Marsden motion to have Newton removed. The Marsden hearing was held on April 9, 1999. Adams began by stating that he did not believe he had been given enough information to assist in his defense. He then stated that counsel had concluded he was guilty and Adams did not believe counsel would have "[his] best interest at heart."
The trial court told Adams there was no requirement defense counsel believe he was innocent.
Adams stated he had spent little time with counsel and they had not developed an attorney-client relationship. Adams complained he was not getting information concerning his case. He stated he had been in Bailey Detention Center since March and had seen counsel only once. When the two had telephone conversations, they would argue and counsel would hang up on him. They argued about what was important and not important in the case. It appears Adams was upset because counsel's investigator stated he could not spend time on Adams's case since it took time away from more lucrative work.
Counsel replied he was distressed by Adams's comments and concluded that from Adams's point of view there was lacking the trust and confidence central to an attorney-client relationship. Newton stated the two had lengthy conversations concerning the case. Newton believed the problem was that Adams was "in denial." Adams believed he was not responsible for the victim's death. This created problems since given the state of the evidence, Newton was recommending Adams pursue a plea bargain. Given Adams's level of denial, he simply refused to listen. Counsel stated it would be best to appoint Adams a new lawyer and hope a better relationship developed.
The trial court disagreed, stating Adams's problem was that he did not like counsel's evaluation of the case so he did not like counsel. The court stated to Adams that he was aware of the evidence in the case and that Adams was "not walking away from this thing."
Adams replied that Newton had never told him the strength of the case against him. He stated that counsel was simply not giving him information about the case.
The trial court noted the trial date was in June and motions would be heard in May. The court noted that there would be opportunities for Adams to talk with counsel. The court explained that Adams had misunderstood the intent of counsel's letter. Counsel was merely preparing the way for a "heart to heart" discussion concerning the case. The court told Adams that if he decided to go to trial even against counsel's advice, he would be well represented. The court told Adams it was too early to complain about not seeing every piece of evidence in the case.
Adams replied he simply believed he was not being defended.
The trial court told Adams if the trial was set for the next week there might be some cause for concern. The trial, however, was months away. The court denied the Marsden motion without prejudice to raise it again at a later time.
It appears that at the time of the hearing on in limine motions Adams wished to make a second Marsden motion. On inquiry by the court at the end of the hearing, however, Adams stated he did not wish to make the motion.
(Lodgment No. 1 at 14-17.)

  The Sixth Amendment requires an appropriate inquiry into the grounds for a Marsden motion. Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000). Failure to conduct such an inquiry amounts to the constructive denial of counsel and, thus, per se error. Id. at 1027.

  In the present case, the court conducted an in camera hearing on Petitioner's Marsden motion several months before the actual trial. (Lodgment No. 8 at 7.) After hearing from both Petitioner and his counsel, the court determined that Petitioner "[did] not like the messenger," and that this was not a sufficient reason to substitute counsel. (Lodgment No. 8 at 15.) Prior to the trial, at the subsequent hearing on in limine motions, the court inquired of Petitioner whether he wished to renew his Marsden motion and Petitioner stated that he did not.*fn3 (Lodgment No. 1 at 17.)

  Petitioner bases this Sixth Amendment claim on an alleged irreconcilable conflict with counsel due to Petitioner's belief that counsel thought Petitioner was guilty and also due to alleged disagreements over defense strategies. (1st Amend. Pet. at 6-7.) However, a defendant has no right to an attorney who shares his view of trial strategy. United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th Cir. 1998); See also United States v. Corona-Garcia, 210 F.3d 973, 977 n. 2 (9th Cir. 2000) (even severe conflict over trial tactics is not enough for a court to reverse); United States v. Wadsworth, 830 F.2d 1500, 1509 (9th Cir. 1987) ("appointed counsel, and not his client, is in charge of the choice of trial tactics and the theory of defense").

  Furthermore, it is not required that a defendant have a meaningful relationship with counsel, only an ability to communicate with him. LaGrand v. Stewart, 133 F.3d 1253, 1276-77 (9th Cir. 1998) (citing Morris v. Slappy, 461 U.S. 1, 13-14 (1983)). There is no evidence, either at the Marsden hearing or at the trial, that demonstrated a complete breakdown between Petitioner and counsel. Cf. United States v. Adelzo-Gonzalez, 268 F.3d 772, 775, 778 (9th Cir. 2001) (counsel had, inter alia, used profane language in speaking to the defendant, had threatened to "sink [the defendant] for 105 years" if he did not agree to a plea agreement, advised the court that the defendant was a liar, accused [the defendant] of feigning ignorance, and vigorously opposed the motions for substitution of counsel).

  Petitioner's Marsden motion was heard by the court in camera, and the court properly concluded that there was sufficient time before the trial for counsel to address Petitioner's concerns. (Lodgment No. 1 at 18.) By denying the motion without prejudice and by specifically asking Petitioner if he wished to reassert the motion before trial, the trial court provided Petitioner with the opportunity to bring the motion again if communication between him and counsel did not improve. Petitioner declined to reassert the claim. Thus, the trial court acted within its discretion and did not violate Petitioner's Sixth Amendment right to effective counsel when it denied his motion for substitution of counsel.

  B. Jury Instruction

  Petitioner alleges that the evidence allowed for multiple theories of when and where Stratton was murdered on the night of the crime. For example, Petitioner argues that Stratton may have been murdered when the men stopped at the liquor store after leaving the bar, or that Stratton was killed when there was physical confrontation between Stratton and Petitioner shortly after leaving the liquor store. (Lodgment No. 1 at 13.) Petitioner also argues that Stratton may have been killed when Petitioner later drove the RV to buy drugs. (Id. at 13.) Since the prosecution did not specify which time or place it was relying on, Petitioner argues that the trial court was required to instruct the jury in terms of CALJIC No. 17.01, which requires the jury to unanimously agree on the circumstances of the crime.*fn4 (1st Amend. Pet. at 19-32.); (Lodgment No. 1 at 13.)

  Petitioner's claim fails because it does not present a federal question and because Petitioner's claim of error, should a federal question exist, does not constitute a violation of due process. A state prisoner may only seek relief under 28 U.S.C. section 2254 if he is held "in custody in violation of the laws or treaties of the United States." 28 U.S.C. § 2254; Engle v. Isaac, 456 U.S. 107, 119 (1982). In the absence of an alleged deprivation of a federal right, a state prisoner is not entitled to habeas relief. Engle, 456 U.S. at 120 n. 19.

  A challenge to jury instructions, solely as an error under state law, does not state a claim cognizable in federal habeas corpus proceedings. Engle, 456 U.S. at 119. The Court has long recognized that a "mere error of state law" is not a denial of due process. Id. at 120 n. 21 (citing Gryger v. Burke, 334 U.S. 728, 731 (1948)). If the opposite were true, then "every erroneous decision by a state court on state law would come [to this Court] as a federal constitutional question." Gryger, 334 U.S. at 731.

  Petitioner does not put forth a cognizable claim for federal habeas relief, and instead merely challenges the correctness of the state trial court's decision not to instruct the jury pursuant to CALJIC 17.01. (1st Amend. Pet. at 19.) Even if Petitioner had alleged that the trial court's decision denied him of his right to a unanimous verdict, this claim would not be a violation of federal law because a state criminal defendant, unlike a federal criminal defendant, does not have a federal Constitutional right to a unanimous jury verdict. Johnson v. Louisiana, 406 U.S. 356, 363 (1972); Apodaca v. Oregon, 406 U.S. 404, 406 (1972); United States v. Ullah, 976 F.2d 509, 513 (9th Cir. 1992); Thus, Petitioner's claim fails because it does not provide a basis for habeas corpus relief.

  Furthermore, assuming arguendo that Petitioner stated a claim on which federal habeas relief could be granted, the claim would fail on the merits. The standard of review for instructional error in habeas cases requires the instruction to be proved so injurious as to violate a petitioner's due process rights. As stated by the United States Supreme Court in Henderson v. Kibbe, 431 U.S. 145 (1977):

The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten, 414 U.S. [141], at 147, 94 S.Ct., at 400, 38 L.Ed.2d 368, not merely whether "the instruction is undesirable, erroneous, or even `universally condemned,'" id., at 146, 94 S.Ct., at 400. [T]he . . . burden is especially heavy [when] no erroneous instruction was given . . . An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.
Id. at 154.

  The petitioner in Henderson alleged that the failure of the trial court to instruct the jury on the issue of causation violated his federal due process rights because it allowed the jury to convict him without finding each element of the crime proved beyond a reasonable doubt. Id. at 151-152. The Supreme Court looked to the conduct of the trial as well as the totality of the jury instructions given, and concluded that the failure to give a causation instruction was not reversible error. Id. at 153. In the present case, it is alleged that the trial court erroneously failed to instruct the jury sua sponte regarding CALJIC 17.01. Jury verdicts in California criminal cases must be unanimous. People v. Russo, 25 P.3d 641, 645 (Cal. 2001). Additionally, a jury must unanimously agree that the defendant is guilty of a specific crime. Id. at 645 (citing People v. Diedrich, 643 P.2d 971, 980 (Cal. 1982). This requirement is intended to prevent a defendant from being convicted where there is no single offense that all jurors agree the defendant committed. People v. Sutherland, 21 Cal. Rptr. 2d 752, 757 (Cal.Ct.App. 1993). For example, in Diedrich the evidence showed that two discrete bribes occurred, and the defendant was convicted on a single count of bribery. Diedrich, 643 P.2d at 980. The California Supreme Court found that it was a reversible error because without the unanimity instruction, some jurors might find that the defendant was guilty of one of the bribes and other jurors might find that the defendant was guilty of the other bribe. Id. at 980. As a result, there would not be a unanimous guilty verdict on any specific bribe. Id. at 980. See also People v. Castaneda, 64 Cal. Rptr. 2d 395, 397 (Cal.Ct.App. 1997) (CALJIC No. 17.01 required where acts of heroin possession were factually distinct).

  However, the present case is distinguishable from Diedrich and Castaneda because the evidence against Petitioner revealed a single crime of murder, not multiple, factually distinct murders. When "the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis . . . or the `theory' whereby the defendant is guilty." Russo, 25 P.3d at 646; See also People v. Jenkins, 997 P.2d 1044, 1130 (Cal. 2000) ("it is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by statute, it need not decide unanimously by which theory he is guilty"); People v. Davis, 10 Cal. Rptr. 2d 381, 391 (Cal.Ct.App. 1992) (a conviction is allowed even when jurors have multiple, contradictory conclusions regarding the defendant's intent).*fn5 As a result, a unanimity instruction is inappropriate where several theories may provide the basis for the jury to return a guilty verdict on a single, discrete criminal event. People v. Vargas, 110 Cal. Rptr. 2d 210, 247 (Cal.Ct.App. 1997). Accordingly, this Court agrees with the state court's determination that the trial court acted properly when it omitted the unanimity instruction, even though the evidence could be used to support a conviction on several theories, since the individual jurors were not required to unanimously agree on a single theory. (Lodgment No. 1 at 14.)

  Finally, the trial court's omission was consistent with United States Supreme Court authority and did not so infect the entire trial as to constitute a violation of due process. See Schad v. Arizona, 501 U.S. 624, 631-632 (1991) (it is not necessary that jurors agree upon the preliminary factual issues that underlie a verdict); Cupp v. Naughten, 414 U.S. 141, 147 (1973) (standard for a due process violation is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process"). Thus, Petitioner's claim, assuming arguendo that it presented a federal question, fails on the merits because the state trial court's proper omission of CALJIC 17.01 did not violate Petitioner's right to due process.

  C. Ineffective Assistance of Counsel

  In his third claim, Petitioner contends his trial counsel was ineffective. (2nd Amend. Pet. at 2.) According to Petitioner, his Sixth Amendment right to adequate representation was violated because his trial counsel did not make an opening statement and because his trial counsel did not ask for a specific verdict during closing arguments. (Id. at 2.) Additionally, Petitioner alleges that these omissions by his trial counsel violated his right to due process because the government did not bear the burden of persuasion to show that Petitioner committed the murder. (Id. at 2.)*fn6*fn7

  The United States Supreme Court has recognized that the Sixth Amendment right to counsel exists in order to protect the fundamental right to a fair trial. Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 458 (1938); Powell v. Alabama, 287 U.S. 45, 53 (1932). In addition, the Supreme Court has held that "the right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). However, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689 (1984). To establish a cognizable claim for ineffective assistance of counsel, Petitioner must prove "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686; Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997); Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996), superseded by statute on other grounds. First, Petitioner must show his counsel's performance fell "outside the wide range of professional competence," and was, in fact, deficient. Strickland, 466 U.S. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. Second, Petitioner must show counsel's deficient performance prejudiced his defense. Id. Prejudice is established if there is a reasonable probability that a more favorable outcome would have resulted but for the deficient performance by counsel. Id. at 694. Because Petitioner must prove both Strickland elements, the court may reject his claim upon finding either counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697.

  1. No Opening Statement

  Petitioner insists that he was denied effective assistance of counsel when his attorney reserved, and then ultimately declined to make, an opening statement. (2nd Amend. Pet. at 2.) However, the "mere criticism of a tactic or strategy" is insufficient to support a petitioner's claim of inadequate representation. Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980). The Ninth Circuit has recognized that the decision of whether or not to make an opening statement is generally a matter of trial tactics, and thus will not ordinarily constitute the incompetence basis for an ineffective assistance of counsel claim. United States v. Rodriguez-Ramirez, 777 F.2d 454, 458 (9th Cir. 1985); See also United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985) (the decision not to make an opening statement is a reasonable tactical decision).

  Here, there are many reasons why counsel may have chosen not to give an opening statement. The fact that the prosecution and the counsel for Petitioner's co-defendant both made opening statements, as noted by Petitioner (2nd Amend. Pet. at 2.), is insufficient to show inadequate representation. Even the most talented criminal defense attorneys would not choose the same defense strategy for a particular defendant. Strickland, 466 U.S. at 689. Thus, Petitioner's claim regarding the opening statement does not override the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. As a result, trial counsel's decision not to make an opening statement was a reasonable tactical decision and is an insufficient basis for an ineffective assistance of counsel claim.

  Moreover, Petitioner does not demonstrate that he was prejudiced by counsel's decision not to make an opening statement. Both the trial court and the state court of appeal noted that there was strong evidence against Petitioner (Lodgment No. 8 at 11; Lodgment No. 1 at 18.), and there is no reasonable probability that but for the alleged inadequate representation by his trial counsel, the outcome of the trial would have been different.

  2. No Specific Verdict

  Petitioner also contends that his trial counsel was ineffective because counsel did not ask the jury for a verdict of not guilty or a specific verdict on any count. (2nd Amend. Pet. at 2.) Trial counsel is awarded broad tactical discretion in making closing arguments. See Yarborough v. Gentry, 540 U.S. 1, 9 (2003) (calling a client a "bad person, lousy drug addict, stinking thief, jail bird" did not constitute ineffective assistance of counsel because it was simply trial tactics designed to build credibility with the jury); Wade v. Calderon, 29 F.3d 1312, 1319 (9th Cir. 1994) (counsel was not incompetent in telling the jury that he told his wife that he was not "defending" his client but "representing" him and that he thought the crime was horrible because it was a trial tactic to focus the jury on lack of intent), overruled on other grounds by Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 815 (9th Cir. 2003); But cf. United States v. Thomas, 417 F.3d 1053, 1060 (9th Cir. 2005) (any counsel who makes concessions of guilt without prior discussion with the client is incompetent).

  The record shows that Petitioner's counsel presented a thorough closing argument that challenged the prosecution's burden, the presumption of innocence, and the fact that the prosecution's case was entirely based on circumstantial evidence. (Lodgment No. 7 at 921-923, 925, 929.) Counsel also asked the jury to make a "conscious effort" to presume that Petitioner was innocent. (Lodgment No. 7 at 922.) Given the strength of the evidence and the number of charges brought against Petitioner, it was reasonable for trial counsel to try and negate the more serious charges while not asking the jury for a specific verdict. The Supreme Court recognized that such a technique, as opposed to charging a jury to acquit, is a reasonable trial tactic because it "stresses the jury's autonomy." Yardborough, 540 U.S. at 10. Thus, trial counsel's actions were reasonable trial tactics and are an insufficient basis for an ineffective assistance of counsel claim.

  Furthermore, as noted above, considering the weight of evidence against Petitioner and the number of charges brought against him, Petitioner has not demonstrated prejudice because there is no reasonable probability that but for the alleged inadequate representation by his trial counsel, the outcome of the trial would have been different. Indeed, it is likely that counsel's closing argument was effective since Petitioner was acquitted of the first degree murder charge and the special circumstances charge.

  Consequently, because this Court finds that Petitioner has failed to satisfy the Strickland analysis, this Court holds Petitioner's claim of ineffective assistance of counsel, premised on counsel's decision not to make an opening statement and not to request the jury for a specific verdict, to be without merit. Strickland, 466 U.S. at 697. Accordingly, this Court finds the state court's adjudication of this claim was not contrary to, nor an unreasonable application of, the clearly established federal law, Williams, 529 U.S. at 405-06, and that Petitioner therefore is not entitled to habeas relief on this claim. VII. Conclusion

  After thorough review of the record in this matter and based on the foregoing analysis, it is recommended that the Petition for Writ of Habeas Corpus be DENIED and this action be DISMISSED WITH PREJUDICE. This Report and Recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).

  Any party may file written objections with the Court and serve a copy on all parties on or before November 3, 2005. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed no later than ten days after being served with the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).



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