The opinion of the court was delivered by: BARBARA MAJOR, Magistrate Judge
REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF
The Court submits this Report and Recommendation to United
States District Judge Marilyn L. Huff pursuant to
28 U.S.C. § 636(b)(1) and Civil Local Rule HC.2 of the United States District
Court for the Southern District of California.
On July 30, 2004, Petitioner Christopher Leon Baker, a state
prisoner proceeding pro se, filed a Petition for Writ of Habeas
Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254
("Petition"). Doc. No. 1. On February 8, 2005, Respondent filed
an Answer and a Memorandum of Points and Authorities in support
("Ans. Mem."), and lodged portions of the state court record with
the Court. Doc. Nos. 10 and 11. On February 17, 2005, Petitioner
filed a Traverse and Memorandum of Points and Authorities in
support ("Traverse"). Doc. Nos. 19 and 20.
On July 1, 2005, Petitioner filed a Supplement to Traverse to
Answer to Petition for Writ of Habeas Corpus ("Supp.Traverse").
Doc. No. 25. Attached to this document was a May 6, 2005 Forensic
Biology Unit Laboratory Report from the San Diego Police
Department excluding the female victim and Petitioner as possible
sources of various DNA samples obtained from evidence in
Petitioner's criminal case. Id. at Exh. B. Petitioner asked the
Court to consider this new evidence and argued that it supported
his ineffective assistance of counsel claim. Id. at 2. In
response, the Court ordered supplemental briefing. On July 26,
2005, Respondent filed a Supplemental Answer to Petition for Writ
of Habeas Corpus ("Supp. Ans.") and Supplemental Notice of
Lodgment for Lodgment 24, a copy of the same laboratory report
attached as Exhibit B to Petitioner's Supplemental Traverse. Doc.
On January 20, 2000, the government filed a twelve-count
information in San Diego County Superior Court (Superior Court
Case No. SCD 146719), charging Petitioner and co-defendant
Deandre Maurice Lambert with conspiracy (California Penal Code
(hereinafter "PC") § 182(a)(1)) (count one), forcible rape (PC §
261(a)(2)) (count two), forcible rape while acting in concert (PC
§§ 261(a)(2) and 264.1) (count three), sodomy by use of force (PC
§ 286(c)(2)) (count four), sodomy while acting in concert (PC §
286(d)) (count five), attempted rape by foreign object (PC §§
289(a)(1) and 664) (count six), robbery (PC § 211) (counts seven
and eight),*fn1 burglary (PC § 459) (count nine), receiving
stolen property (PC § 459) (count ten), possession of a firearm
by a felon (PC § 12021(a)(1)) (count eleven), and resisting an
officer (PC § 148(a)(1)) (count twelve).*fn2 Lodgment 1,
Clerk's Transcript Volume 1, hereinafter "CT1" at 12-24. The
Information also alleged that Petitioner had served two prior terms of imprisonment and had suffered two
felony convictions. CT1 at 21. On February 1, 2000, a jury
convicted Petitioner of conspiracy to commit first degree
robbery, as well as rape, burglary, forcible rape, forcible rape
while acting in concert, sodomy by use of force, sodomy while
acting in concert, attempted rape by foreign object, attempted
robbery on Elizabeth J.,*fn3 first degree robbery on
Nickolas S., residential burglary, receiving stolen property,
possession of firearm by felon, and resisting an officer.
Lodgment 2, Clerk's Transcript Volume 2, hereinafter "CT2" at
205-06; Lodgment 3, Clerk's Transcript Volume 3, hereinafter
"CT3" at 8-28. On September 28, 2000, Petitioner was sentenced to
a state prison term of thirty-five years-to-life plus twenty-six
years. CT2 at 397-99.
Petitioner appealed his conviction to the California Court of
Appeal on May 31, 2001. Lodgment 11. On the same date, Petitioner
also filed a Petition for Writ of Habeas Corpus in the California
Court of Appeal along with a request that the Petition be
consolidated with Petitioner's appeal. Lodgment 12. On April 24,
2002, the appellate court ordered that the habeas petition be
consolidated with the appeal. Lodgment 14. On the same date, the
court affirmed the conviction and denied the petition in an
unpublished opinion. Lodgment 15, People v. Baker, D036645. On
May 10, 2002, Petitioner filed a petition for review in the
California Supreme Court. Lodgment 16. That court denied review
on July 10, 2002, by an order stating: "Petition for review
DENIED." Lodgment 17, People v. Baker, S107022.
Petitioner filed a second habeas petition in the state superior
court.*fn4 Lodgment 18. That petition was denied in an
unpublished written order filed July 11, 2003. Lodgment 19, In
re Baker, HC 17426, SCD 146719. On August 11, 2003, Petitioner
filed a habeas petition in the state appellate court. Lodgment
20. That petition was denied in a written order adopting the
reasoning of the superior court, which was filed on September 10,
2003. Lodgment 21, In re Baker, D042686. On October 14, 2003,
Petitioner filed a habeas petition in the California Supreme Court. Lodgment 22. That court denied
the petition on June 30, 2004, by an order stating in full:
"Petition for writ of habeas corpus is DENIED. (See In re Clark
(1993) 5 Cal.4th 750; In re Miller (1941) 17 Cal.2d 734.)."
Lodgment 23, In re Baker, S119680.
The following statement of facts is taken from the California
Court of Appeal's opinion in People v. Baker, D036645. See
Lodgment 15. This Court relies on these facts pursuant to
28 U.S.C. § 2254(e)(1). See also Parke v. Raley, 506 U.S. 20,
35-36 (1992) (findings of historical fact, including inferences
properly drawn from such facts, are entitled to statutory
presumption of correctness); Sumner v. Mata, 449 U.S. 539, 547
(1981) (deference is owed to findings of state trial and
appellate courts); Tinsley v. Borg, 895 F.2d 520, 524-25 (9th
Cir. 1990) (factual findings of state trial and appellate courts
are entitled to presumption of correctness on federal habeas
corpus review). Where a more detailed examination of the state
court record is necessary to address Petitioner's claims, direct
citations to the record will be provided.
At approximately 12:30 a.m. on July 26, 1999,
Elizabeth J., a 20-year-old college student, arrived
at the apartment of her boyfriend Nikolas S. in the
Mission Beach area of San Diego. Elizabeth parked her
car in the driveway. Nikolas was in the process of
making dinner and was using a butcher knife to
prepare the meal.
After about 20 to 30 minutes, Elizabeth returned to
her car for a video movie in her overnight bag. While
at the car, she noticed a black Lexus drive by. The
Lexus had dark tinted windows and shiny wheel rims.
The car was going about 15 to 20 miles per hour in a
northward direction. Deandre Lambert was the driver.
Defendant and appellant Christopher Leon Baker was
the passenger. Both men looked at Elizabeth in a way
she felt was odd. She returned to the apartment and
entered through the kitchen door.
Fifteen to twenty minutes later, appellant and
Lambert entered the apartment through the kitchen
door. Appellant kept his hand under his shirt. He
said he had a gun under the shirt and stated: "I have
a gun. Don't make me shoot you." Elizabeth believed
him. Nikolas believed it was a gun. Appellant
followed Elizabeth, Nikolas and Lambert into the
livingroom. He was holding the large kitchen knife
Nikolas had used to prepare dinner. He waved the
knife in the air and threatened Elizabeth and Nikolas
with it. Appellant told Elizabeth and Nikolas to "get down."
One of the men yelled: "Who else is here? Who else is
home?" Appellant then picked Elizabeth up by the
pants and asked: "Where's the money? Where's the
Lambert approached Nikolas and threatened to shoot
him. He hit him on the side of the head with his
fist. Lambert and appellant made the couple lie on
the living room floor for about two minutes during
which time they threatened to shoot and cut them.
They then took the couple into Nikolas's bedroom
where Elizabeth was made to bend over the bed and
Nikolas was forced to kneel down.
As they continued to ransack the bedroom, appellant
and Lambert demanded money, guns and drugs. Lambert
struck Nikolas on the side of the head three or four
times. Nikolas told appellant and Lambert about a box
in the closet which contained about $100 in bills and
Italian lire from a trip to Italy. He saw appellant
take this money and then go through his wallet. He
later discovered $20 had been taken from his wallet.
Elizabeth told appellant and Lambert she had no money
but did have marijuana in her overnight bag in the
kitchen. Appellant shoved and wrestled her into the
kitchen but when she produced a small amount of the
drug, he became upset and said: "Oh, you want to play
games? Well, you know, let's play games." He demanded
she remove all of her clothing, which she did.
Appellant took Elizabeth into Nikolas's roommate's
room and made her lie down on the bed as he and
Lambert then searched the room. Lambert had
previously made Nikolas put his head under his bed so
he could not see what was happening.
When Lambert left the room, appellant demanded
Elizabeth spread her legs. He attempted to insert a
plastic bottle of foot spray into her vagina. He
stopped because the bottle was too large. He left the
room and returned a minute later, again demanding she
spread her legs. He put his penis in her vagina,
hurting her `very bad.' This lasted a minute or two.
She told him she needed to go to the bathroom. He
stated: "Well, go to pee. Go pee or else I'll cut
Lambert came into the room and told appellant there
was no money and they should leave. Lambert's voice
was getting louder. Appellant tried to put his penis
in Elizabeth's anus and partially succeeded. She
screamed and appellant and Lambert left.
Elizabeth curled up in a ball on the bed until she
and Nikolas were sure appellant and Lambert were
gone. She then went into the bathroom and noticed
there was blood on her legs. She bled throughout the
Nikolas called 911 and gave a description of the
intruders and their car.
About sundown the evening before, appellant had
arrived at a party about a mile from Nikolas's
apartment. He arrived as a passenger in a black Lexus
sedan with shiny wheel rims and tinted windows.
Lambert had not been invited to the party but had been dating Terri
Hazzard, the person giving the party.
Between 1:30 and 2:00 a.m., Jason Riley, who was
waiting for a girl he had arranged to see at the
Hazzard party, noticed a black Lexus sedan in the
parking lot. He was not sure the car had been there
when he left earlier for the liquor store. About 10
minutes later, appellant, who had been standing with
a shorter man, approached Riley and asked for a ride.
Riley knew him slightly. They left in Riley's
girlfriend's black Mazda sedan. Riley drove down
Mission Bay Drive to Interstate 8.
As Riley and appellant reached the on ramp to
Interstate 8, they were spotted by San Diego Police
Officer David Achenbach, who had heard the
descriptions of the suspects and their vehicle from
Nikolas's home invasion. He called for backup support
and pulled along side the Mazda. He could clearly see
appellant. As the Mazda pulled onto Interstate 805
south, one of the police officers activated his car's
overhead lights to stop Riley. Riley took the first
exit and stopped the car. He surrendered but
appellant ran down the sidewalk between two
buildings. A neighborhood search began and lasted
about an hour. A red baseball cap and fanny pack
appellant was wearing were found on a walkway between
the two buildings. The fanny pack contained $21 in
assorted change, a loaded pistol stolen earlier that
year and a watch belonging to Nikolas's roommate.
At about 2:30 a.m., James Pfeiffer was working on his
trucks at his North Park home when he saw police all
over the area. He allowed police to come up to his
roof and look around. He then went into his house. As
he prepared to get ready for bed, his wife heard
something and his dog "just went nuts." Pfeiffer went
outside to check on the noise and encountered
appellant standing on a stairway. Appellant told him
to "Shut up. Give me your phone and I'll give you 50
bucks." Pfeiffer responded "I'll be right back." He
returned with a shotgun. Appellant was arrested. The
time of the arrest was 2:50 a.m.
Appellant told the police his name was Randy Smith.
When searched, he had in his possession two $20
bills, three $5 bills, two $1 bills, three silver
dollars, four 50 cent pieces, five Susan B. Anthony
dollars and an Italian 50 lire piece. Five $20 bills
were found in his sock. Nikolas's roommate later
identified several of the 50 cent pieces, some silver
dollars and Susan B. Anthony coins as those taken
from his room.
Police located Hazzard's Lexus. Appellant's prints
were on the driver's side of the trunk lid. Lambert's
were on the driver's side door handle and passenger
side of the trunk lid.
On the afternoon of July 27, appellant telephoned
Terri Hazzard. When she asked why he had taken her
car, he did not answer. He did, however, want to know
what happened when police came to her residence.
Lodgment 15 at 1-5. IV
Petitioner asserts three grounds for habeas relief.*fn5
First, he argues that the trial court violated his Sixth and
Fourteenth Amendment rights when it denied his request for
appointment of new counsel pursuant to People v. Marsden,
2 Cal. 3d 118, 123-24 (1970) (defendant is entitled to new counsel
if the defendant's right to counsel would be substantially
impaired by continuing with the original attorney). Second,
Petitioner argues that the trial court violated his Sixth and
Fourteenth Amendment rights when it denied his request to
represent himself pursuant to Faretta v. California,
422 U.S. 806 (1975) (a defendant has a Sixth Amendment right to conduct
his own defense, provided he knowingly and intelligently forgoes
his right to counsel and is able and willing to abide by the
rules of procedure and courtroom protocol). Third, Petitioner
claims that he received ineffective assistance of counsel because
trial counsel (a) failed to adequately investigate and present
his case, including requesting DNA testing, (b) opposed
Petitioner's requests for a new attorney and to represent
himself, and (c) failed to call the female victim's attending
physician to rebut the testimony of the Sexual Assault Response
Team ("SART") nurse. Petition at 6-9a. In his Supplemental
Traverse, Petitioner argues that the DNA results excluding him as
a source supports his ineffective assistance of counsel claim.
Supp.Traverse at 2.
Respondent argues that the state court's adjudication of each
claim was neither contrary to, nor involved an unreasonable
application of, clearly established federal law. Memorandum of
Points and Authorities in Support of Answer to Petition for Writ
of Habeas Corpus ("Ans. Mem.") at 14-30. As to the new DNA
evidence, Respondent argues that this claim is not exhausted,
that the Habeas Corpus rules prohibit the court from considering
the evidence and that, in any event, the new evidence does not
create a viable ineffective assistance of counsel claim because it does not establish either
element of the Strickland v. Washington, 466 U.S. 668 (1984),
test. Supp.Ans. at 1-7.
Title 28, United States Code, § 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 in behalf of
a person in custody pursuant to the judgment of a
State Court only on the ground that he is in custody
in violation of the Constitution or laws or treaties
of the United States.
28 U.S.C. § 2254(a) (West Supp. 2003) (emphasis added).
This action was filed after the enactment of the Anti-terrorism
and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No.
104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by
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
(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
28 U.S.C. § 2254(d).
A state court's decision may be found to be "contrary to"
clearly established Supreme Court precedent: (1) "if the state
court applies a rule that contradicts the governing law set forth
in [the Court's] cases" or (2) "if the state court confronts a
set of facts that are materially indistinguishable from a
decision of [the] Court and nevertheless arrives at a result
different from [the Court's] precedent." Williams v. Taylor,
529 U.S. 362, 405-06 (2000). A state court decision may involve
an "unreasonable application" of clearly established federal law,
"if the state court identifies the correct governing legal rule
from this Court's cases but unreasonably applies it to the facts of the particular
state prisoner's case," or "if the state court either
unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply. Id. at 407.
"[A] federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must be
objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63,
75-76 (2003) (internal quotation marks and citations omitted).
Clearly established federal law "refers to the holdings, as
opposed to the dicta, of [the United States Supreme] Court's
decisions. Williams, 529 U.S. at 412.
B. Petitioner's Request for New Counsel
Petitioner contends that his Sixth and Fourteenth Amendment
rights were violated when the trial court denied his request for
new counsel. Petition at 8. Petitioner argues that his attorney
was unprepared*fn6 and that the court erred when it relied
on its own recollection of counsel's performance in other cases
to determine that appointed counsel was prepared and able to
represent Petitioner. Id. Petitioner also asserts that because
his attorney was not adequately prepared, he did not have
Petitioner's best interests at heart and did not properly
represent him. Traverse at 20-23.
The state supreme court summarily denied Petitioner's petition
for review (Lodgment 17), so the court must "look through" to the
last reasoned state court decision to form the basis for its
analysis. See Ylst, 501 U.S. at 801-06. In denying
Petitioner's appeal, the appellate court stated:
A defendant seeking to substitute court-appointed
counsel must be allowed to articulate the reasons for
the request. Where he is allowed to do so, the burden
is upon the defendant to demonstrate his Sixth
Amendment right to counsel would be substantially
impaired if he must proceed to trial with the
appointed counsel. (Marsden, supra, 2 Cal.3d at p.
123.) Absent a clear showing of inadequate representation, there is no
right to a new attorney. (People v. Silva (1988)
45 Cal.3d 604, 605.) In the absence of a clear abuse of
discretion, the decision of the trial court will not
be reversed. (People v. Berryman (1993)
6 Cal. 4th 1048, 1070.)
A defendant is entitled to relief if the record
clearly demonstrates appointed counsel is not
providing adequate representation or that counsel and
client have developed an irreconcilable conflict.
(People v. Barnett (1998) 17 Cal. 4th 1044, 1085.)
A review of the hearing transcript reveals
appellant's claims at the Marsden hearing were in
substance the same ones he had made in his
ineffective assistance of counsel argument on appeal.
As we have pointed out, appellant met with his
attorney, obtained the preliminary hearing transcript
and was provided the materials necessary for
discovery. Counsel followed leads supplied by
appellant, without success. An eyewitness expert
called by codefendant Lambert was used by appellant's
counsel. Moreover, with respect to appellant's
argument there had been no DNA testing, his counsel
explained the DNA sample was not sufficient to link
appellant to the crime and he felt it would
jeopardize appellant if he insisted on further
testing. He gave a detailed explanation of what he
had done and why his efforts had or had not been
Appellant urges that if we conclude the record does
not support ineffective counsel it is because counsel
inaccurately stated he was ready for trial when he
was not. As we have pointed out in the preceding
argument, the record of the trial does not support
such an assertion.
Nor does the record support the conclusion appellant
and counsel had an irreconcilable conflict. In
essence, appellant argued below that he did not trust
his counsel, who he felt was not safeguarding his
rights. He wanted him `checked out.' These are not
sufficient bases to support substitution of counsel.
(People v. Berryman, supra, 6 Cal.4th at P. 1070;
People v. Crandell (1988) 46 Cal.3d 833, 860.)
Lodgment 15 at 9-11.
The Sixth Amendment requires that an accused have "`counsel
acting in the role of an advocate.'" United States v. Cronic,
466 U.S. 648, 656-67 (1984), citing Anders v. California,
386 U.S. 738, 743 (1967). The appropriate inquiry in evaluating Sixth
Amendment claims "`focuses on the adversarial process, not on the
accused's relationship with his lawyer as such.'" Wheat v.
United States, 486 U.S. 153, 157-60 (1988) (quoting Cronic,
466 U.S. at 657 n. 21). Moreover, although "the right to select
and be represented by one's preferred attorney is comprehended by
the Sixth Amendment, the essential aim of the Amendment is to
guarantee an effective advocate for each criminal defendant
rather than to ensure that a defendant will inexorably be represented by the
lawyer whom he ...