United States District Court, S.D. California
October 6, 2005.
MICHAEL DELANO ADAMS, Petitioner,
JEANNE S. WOODFORD, Director of the California Department of Corrections Respondent.
The opinion of the court was delivered by: LOUISA PORTER, Magistrate Judge
REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS
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
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.
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
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
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 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
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
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
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. , 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
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
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
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).
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.