The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge
ORDER: (1) ADOPTING AS MODIFIED THE FINDINGS OF MAGISTRATE JUDGE; (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND (3) ISSUING A CERTIFICATE OF APPEALABILITY
Petitioner is a California prisoner proceeding pro se, and with the assistance of counsel, with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner and his brother were convicted of first degree murder after testimony at their joint trial established that Petitioner drove his brother to find the victim, a man with whom Petitioner's brother had recently argued, and upon finding him verbally encouraged his brother to shoot the person, who died of his wounds. Petitioner claims his federal due process rights were violated by admission of statements of a juvenile accomplice, who was in the car and testified under a plea agreement, because the statements were the product of police coercion (claim one), and that he received ineffective assistance of counsel in several respects (claim two).
Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Ruben B. Brooks, which recommends the Petition be denied. (Doc. No. 15.) With respect to Claim One, the Magistrate Judge found there was no clearly established federal law prohibiting admission of coerced third-party statements, but that even under a general due process approach the introduction of the testimony did not result in any fundamental unfairness, and that the state court's adjudication of the claim was therefore objectively reasonable within the meaning of 28 U.S.C. § 2254(d)(1) and (2). (R&R at 13-25.) As to Claim Two, the Magistrate Judge found that Petitioner was not prejudiced by defense counsel's failure to investigate or present the alternate defense that Petitioner was unaware his brother was armed (as opposed to the alibi defense presented at trial), because the outcome would have been the same under the natural and probable consequences doctrine, and found that the state court's adjudication of the remaining aspects of Claim Two was neither contrary to, nor involved an unreasonable application of, clearly established federal law. (R&R at 25-36.) The Magistrate Judge also criticized the fact that the Petition had been "gostwritten" by an attorney who neither signed the Petition nor made an appearance in this action. (R&R at 1, n.1.)
Counsel assisting Petitioner has filed objections to the R&R. (Doc. No. 17.) Counsel objects to the Magistrate Judge's criticism of how he chose to assist Petitioner, contending that his name appears on the pleading and it was therefore not "gostwritten," and objects to the findings with respect to Claim Two that there was no prejudice from defense counsel's failure to request a severance and failure to present the alternate defense that Petitioner did not know his brother was armed. (Obj. at 1-5.) The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1) (West Supp. 2006). The Court has read and considered Petitioner's Objections and has reviewed the R&R under this standard. For the following reasons the Court adopts as modified the findings of the Magistrate Judge, denies habeas relief, and issues a Certificate of Appealability.
The Court ADOPTS in full the findings and conclusions of the Magistrate Judge with respect to Claim One, to which no party has objected. Habeas relief is DENIED as to Claim One for the reasons set forth in the R&R.
Petitioner alleges in Claim Two that he received ineffective assistance of counsel because defense counsel: (1) failed to investigate, pursue or explain to Petitioner the alternate defense that Petitioner was unaware that his brother was armed; (2) failed to argue for a severance of Petitioner's trial from his brother's trial; (3) admitted Petitioner's guilt in the opening statement; and (4) informed the jury that the prosecution's key witness had taken a lie detector test. (Pet. at 6.) Petitioner only objects to the findings and conclusions of the Magistrate Judge with respect to the first and second aspects of Claim Two. The Court ADOPTS in full the Magistrate Judge's findings and conclusions with respect to the third and fourth aspect of Claim Two, to which no party has objected. With respect to the first and second aspects of Claim Two, the Court ADOPTS AS MODIFIED the findings and conclusions in the following manner.
Petitioner argues that defense counsel was deficient in relying on the investigation and defense presented by his brother's attorney during their joint trial, in particular the alibi defense that neither of them were at the crime scene. Petitioner now contends that he believed that he was headed to a fistfight with the victim and his friends, and had no knowledge that his brother was armed or intended to shoot the victim. (Pet. Mem. at 20; Traverse at 10.) Petitioner's defense attorney stated in a declaration attached to a state habeas petition consolidated with the direct appeal, that she informed Petitioner that he could benefit from not being tried along with his brother, and that "his best defense involved his lack of knowledge regarding his brother's intentions." (Lodgment No. 18, Ex. C at 2.) Defense counsel stated that Petitioner insisted on a joint trial, and "told me the only defense he would adopt was that he was not present. He would not let me argue the case in the alternative." (Id.) Petitioner stated in his own declaration attached to the same petition that he told defense counsel that he "did not know anyone would be killed and left it up to her to present the defense. She never told me there were different defenses we could use." (Lodgment No. 18, Ex. A at 1.) He also contends that defense counsel did not tell him he had a good chance to win if he had a separate trial, and that he would have agreed to a separate trial if she had done so. (Id.) Petitioner argues here, as he did in state court, that even assuming defense counsel is to be believed, he was prejudiced by the ineffective assistance of his counsel, citing Phillips v. Woodford, 267 F.3d 966 (9th Cir. 2001) and Johnson v. Baldwin, 114 F.3d 835 (9th Cir. 1997), for the proposition that defense counsel was deficient in permitting him to present the weak alibi defense at the expense of the stronger alternate defense notwithstanding his insistence of foregoing the alternate defense. (Pet. Mem. at 18-19.)
As the R&R acknowledged, the main evidence against Petitioner and his brother was presented by Souksakhone Douangmal ("Souk"), who testified that he accompanied Petitioner in Petitioner's car as Petitioner drove his brother to find the victim, a man with whom Petitioner's brother had argued over the course of a week and who had a few hours before vandalized Petitioner's brother's car. (R&R at 5.) Souk testified that Petitioner agreed to drive his brother to find the victim after his brother said to Petitioner: "let's go get those fools," and that Petitioner's brother had a gun visible in his waistband at the time. (Id.) However, Souk had previously made a contradictory statement to the police to the extent that no one saw the gun until they arrived at the scene. (Id.) Souk testified that when the group confronted the victim, the victim ran and Petitioner told his brother to "shoot him," and Petitioner drove away with the headlights turned off after the shooting. (Id. at 5-6.) At trial, one witness identified Petitioner's brother as the shooter, and several witnesses identified the car involved in the shooting as similar to Petitioner's car. (Id. at 6.)
The state appellate court applied Strickland v. Washington, 466 U.S. 668 (1984), but did not consider the performance prong of the claim. (Lodgment No. 21, People v. Nasirichampang, No. D038282, slip op. at 35-36 (Cal. Ct. App. 2003.) Rather, it denied the claim on the prejudice prong alone, finding that the "natural and probable consequences" doctrine applied, stating in part:
In this case, the evidence that [Petitioner] agreed to "go get these fools" and drove [his brother], who was armed with a gun, to find [the victim] is sufficient to convict [Petitioner] of murder because [the victim's] murder was a natural and probable consequence of the planned assault. For that reason, [Petitioner] has failed to show that he was prejudiced by his counsel's failure to put on this alternative defense, as well as his counsel's failure to independently investigate his defense. (Id. at 37.)
The Magistrate Judge found that Petitioner was not prejudiced by defense counsel's failure to present the defense in question because "the outcome of the trial would have been the same" even if defense counsel had presented the defense. (R&R at 31.) That finding was in turn based on the conclusion that in order for this defense to have been viable, Souk's testimony would have to be rejected, which in turn could only happen if this Court found both the jury and the appellate court's findings that Souk's testimony was credible to be an objectively unreasonable determination of the facts within the meaning of 28 U.S.C. § 2254(d)(2). (Id.)
Petitioner contends the Magistrate Judge erroneously relied on People v. McCoy, 25 Cal.4th 1111, 1117 (2001) for the proposition that the natural and probable consequences doctrine apples here, because, according to Petitioner, the McCoy case makes clear that the doctrine does not apply where, as here, the jury was not instructed on the doctrine. (Obj. at 4.) Petitioner argues the R&R overlooks controlling state law in People v. Hickles, 56 Cal.App.4th 1183, 1197 (1997), which he contends provides that the doctrine does not apply where the evidence would have supported aiding and abetting simple assault and assault with a deadly weapon. (Id.) Petitioner objects that the R&R distinguished his situation on the basis that the natural and probable consequences instruction was not given due to defense counsel's request that it not be given, arguing that defense counsel's failure to insist on the instruction is a product of her deficient performance in failing to present the defense. (Id.) Finally, Petitioner objects to the Magistrate Judge's finding that because the record supports a finding the jury ...