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BAKER v. LEWIS

November 15, 2005.

CHRISTOPHER LEON BAKER, Petitioner,
v.
GAIL LEWIS, Warden, et al., Respondents.



The opinion of the court was delivered by: BARBARA MAJOR, Magistrate Judge

REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
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.

I

  FEDERAL PROCEEDINGS

  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. No. 27.

  II

  STATE PROCEEDINGS

  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.

  III

  UNDERLYING FACTS

  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 money?"
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 you."
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 night.
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

  DISCUSSION

  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.

  A. Standard of Review

  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 AEDPA:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
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 fruitful.
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 ...


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