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Jones v. Woodford

February 22, 2008


The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge


Before the Court is Petitioner Edward Jones's ("Petitioner") Third Amended Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. [Doc. No. 73.] Magistrate Judge Ruben B. Brooks has filed a Report and Recommendation ("R&R") recommending that the Court deny the Petition. Petitioner timely filed objections to the R&R. [Doc. No. 74.] Respondent has not filed a Reply. For the reasons set forth below, this Court ADOPTS the R&R and DENIES the Petition in its entirety.

Factual Background

The facts are set out in the California Court of Appeal opinion affirming Jones's conviction. (Lodgment No. 5, People v. Jones, No. D038250, slip op. (Cal. Ct. App. Oct. 2, 2002).) 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.A. § 2254(e)(1) (West 2006); 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); Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir. 1990) (holding factual findings of state courts are entitled to a presumption of correctness on federal habeas corpus review).

At approximately 9:30 a.m. on June 26, 1999, Roy French was browsing in the showroom of Symbolic Motors, an exotic car dealership in La Jolla, California, when he saw two men enter the showroom. (Lodgment No. 2, Rep.'s Tr. vol. 1, 105-07, Nov. 2, 2000.) One of the men appeared to be talking on a cell phone. (Id. at 106.) The men approached French and Roger Phillips, a Symbolic sales representative, pushed them and ordered them to the back of the showroom. (Id. at 107-08.) When Phillips protested, the taller of the two men pulled out a gun. (Id. at 108.)

The customer, employee, and two men went to the back of the showroom, and the shorter of the two men demanded French's wallet and took approximately one hundred dollars out of it. (Id. at 109.) He moved French into an office and told him to lie on the floor. (Id.) Phillips was also moved into the office. (Id.)

The taller man asked Phillips where the safe was. (Id. at 109-10.) Phillips replied that he did not know, and the man slapped him. (Id. at 110.) During this time, the taller man continued to talk on the cell phone, seemingly getting instructions. (Id.) He then told the shorter man to "put one in the back of his [Phillips] head" and see if Phillips could then open the safe. (Id. at 111.) French looked up at the shorter man, who was pointing a gun at him. (Id.) The two robbers then heard a noise and left the office to investigate. (Id. at 112.)

Ramon Bazaldua arrived at Symbolic where he was employed as a car detailer. (Id. at 155.) When he entered the showroom, the taller robber approached him and asked, "Are you the big guy?' (Id. at 156.) Bazaldua said he was only the detailer and continued walking across the showroom. (Id.) The man put a gun to Bazaldua's head and ordered him into the office where Phillips and French had been taken. (Id.)

The shorter robber bound the hands of all three men with duct tape and forced them to lie on the floor. (Id. at 112, 156.) When French looked up, the taller man put his foot in French's back, stating "I think you're trying to eyeball me, boy," and threatened to shoot him. (Id. at 112.) He asked who owned the Jaguar in the parking lot, and French replied that it belonged to him. (Id. at 114.) The shorter man then took the car keys out of French's pocket. (Id.)

Shortly thereafter, Sean Hughes arrived for work at Symbolic accompanied by his two daughters, ages six and eight. (Lodgment No. 2, Rep.'s Tr. vol. 2, 320-21, Nov. 6, 2000.) The taller man, who Hughes later identified as Anthony Penton, approached Hughes in the showroom and asked if he was the owner of the dealership. (Id. at 321-22.) Hughes replied that he was not. (Id. at 322.) Penton ordered Hughes to the back of the showroom. (Id. at 323.) Hughes could tell from Penton's tone that something was wrong and asked if his daughters could wait outside in his car, but Penton said "No." (Id.)

Penton led Hughes and his daughters to the back, where they encountered the shorter man, who Hughes later identified as Jones. (Id.) Penton and Jones took Hughes and his daughters to an upstairs office where the company's safes were located. (Id. at 324.) The men asked Hughes if he had a key to the office, and Hughes showed them that his keys would not open the door. (Id. at 324-25.)

Penton and Petitioner made Hughes and his daughters lie face down on the floor. (Id. at 325.) Jones took two guns and a roll of duct tape out of a plastic bag and taped Hughes's hands behind his back. (Id.) While Hughes was on the floor, Penton got a call on his cell phone. (Id. at 326.) Petitioner handed one of the guns to Penton, and Penton went downstairs. (Id.) Jones stayed with Hughes and his daughters. (Id.) While playing with the gun he was holding, Petitioner asked Hughes what he had in his pockets. (Id. at 326-27.) Hughes replied that he had ten dollars and a cell phone. Jones said he did not want the money, but he took the cell phone and turned it off. (Id. at 328.)

About one-half hour later, Hughes heard someone yell, "He's running." (Id.) Petitioner ran downstairs and did not return. (Id.) Hughes stayed upstairs until he heard police officers on a bullhorn, at which point he broke free from the duct tape, locked his daughters and himself in another upstairs office, and called 9-1-1. (Id. at 329-31.)

Meanwhile, Shannon Williams arrived at work around 10:15 a.m. (Lodgment No. 2, Rep.'s Tr. vol. 1, 43-44.) She entered the showroom and saw Penton talking on a cell phone. (Id. at 44-45.) When she asked him if he needed any help, Penton pulled a gun from his belt and told her to follow him. (Id. at 45-47.)

Robert Kueber arrived at work shortly after Williams. (Id. at 130.) Penton showed his gun to Kueber and ordered Kueber and Williams to go into Williams's office. (Id. at 47, 131.) As they crossed the showroom, Kueber turned and ran out of the building and across the street to a gas station and called the police. (Id. at 137-38.) Penton ordered Williams into her office and told her that if she moved he would shoot her. (Id. at 47.) Penton ran after Kueber; Jones came down the stairs holding a gun and ran after Penton and Kueber. (Id. at 49-50.)

Williams called the police and removed the duct tape from French's, Bazaldua's, and Phillips's hands. (Id. at 51-52.) The police arrived and, during their subsequent investigation, recovered a plastic bag from an upstairs area of Symbolic. (Lodgment No. 2, Rep.'s Tr. vol. 2, 246.) The bag was later examined, and a fingerprint belonging to Jones was found. (Lodgment No. 1, Rep.'s Tr. vol. 1, 177, 182-84.)

On June 29, 1999, three days after the robbery, Police Officer Andrew Spear saw Petitioner speeding in a tan rental car. (Lodgment No. 2, Rep.'s Tr. vol. 2, 265.) When Officer Spear approached the car, Jones sped up and turned down an alley. (Id.) Officer Spear then turned on his lights and pursued Jones. (Id.) As Officer Spear chased Petitioner in his police car, he saw Petitioner toss a loaded semiautomatic handgun out of the window. (Id. at 266.) Jones eventually stopped and was arrested. (Id. at 264.) A search of the car uncovered a holster that fit the gun that Petitioner had thrown out of the car. (Id. at 267.) The police learned that the car Petitioner was driving had been rented by Penton approximately three weeks earlier. (Id. at

Police later determined that two cell phones linked to Penton were used to send and receive thirty-two phone calls to and from the La Jolla area on the morning of the robbery. (See at 283-92.) Upon searching Penton's home, police found one of the phone numbers Penton called on the morning of the robbery written on a tablecloth. (Id. at 304.) Officers also found .45 caliber ammunition and an Enterprise Rental Car key chain listing the make, model, and license plate number of the car Petitioner was driving when he was arrested. (Id. at 305-06, 310.) During the subsequent police investigation, Williams and Hughes identified both Penton and Jones as their attackers; Kueber identified only Penton; and French and Bazaldua were unable to identify either man. (Id. at 321, 323 (Hughes); Lodgment No. 2, Rep.'s Tr. vol. 1, 46, 50-51 (Williams), 115-18 (French), 148-50, 152 (Kueber), 167-68 (Bazaldua).)

Procedural Background

I. The Conviction

Petitioner and his co-defendant, Anthony Penton were charged with two counts of robbery, see Cal. Penal Code § 211 (West 1999), four counts of attempted robbery, see Cal. Penal Code §§ 211, 664 (West 1999 & Supp. 2007), and two counts of false imprisonment, see Cal. Penal Code §§ 236, 237(a) (West Supp. 2007). (Lodgment No. 1, Clerk's Tr. vol. 1, 1-4, Sept. 11, 2000.) The information also alleged that Petitioner had served four prior prison terms and, in each of the counts, that co-defendant Penton personally used a firearm, see Cal. Penal Code § 12022.53(b) (West Supp. 2007). (Id. at 6-7.)

Prior to trial, the judge recommended that Jones plead guilty to all charges in the information in exchange for receiving a twelve-year sentence. (Lodgment No. 2, Rep.'s Tr. vol. 1, 4-5, Nov. 1, 2000.) Petitioner rejected the offer. (Id.) Immediately afterwards, the District Attorney filed an amended information which added allegations that Jones personally used a firearm in the commission of the crimes listed in each count. (Id. at 5-6; Lodgment No. 1, Clerk's Tr. vol. 1, 24-28, Nov. 1, 2000.) The information was also amended to change one robbery charge to attempted robbery. (Id. at 25.)

Jones and Penton were tried jointly in a jury trial. The jury convicted Petitioner of all charges and found that each of the firearm-use allegations were true. (Lodgment No. 1, Clerk's Tr. vol. 2, 266-72, Nov. 8, 2000.) The prosecutor moved to dismiss two of the prior prison term allegations, and the motion was granted. (Id. at 257; Lodgment No. 2, Rep.'s Tr. vol. 3, 513, Nov. 8, 2000.) Petitioner waived his right to a jury trial on the remaining prison priors and admitted they were true. (Lodgment No. 2, Rep.'s Tr. vol. 2, 504-05, Nov. 7, 2000.)

II. The Motion for New Trial

With new counsel representation, Jones filed separate motions for a new trial on May 18 and June 5, based upon ineffective assistance of trial counsel. (Lodgment No. 1, Clerk's Tr. vol. 1, 140-220, May 18, 2001.) The motions alleged that trial counsel failed to (1) investigate testimonial evidence, including alibi witnesses, (2) consult with experts, (3) present alibi evidence to the jury, (4) investigate physical evidence (perform fingerprint analysis), and (5) make reasonable tactical decisions about, among other things, whether Jones should testify about his alibi. (Id. at 193-97.)

In his new trial motion, Jones noted that his trial counsel, Michael Taggart had objected to testimony of the state's forensic expert because he had only received photographs of Jones's fingerprints on the plastic bag the morning of the first day of trial. (Lodgment No. 5, People v. Jones, slip op. at 8.) Mr. Taggart argued that he had asked for discovery of the fingerprint evidence and had not received it. (Id.) The trial court found that counsel could not claim surprise because he had known about the bag with Jones's fingerprint on it since the preliminary hearing and had the opportunity to conduct an independent analysis of the evidence. (Id.) Nonetheless, the trial court gave Mr. Taggart three days to consult an expert and go over the evidence. Mr. Taggart did not ultimately present any forensic evidence concerning the fingerprint. (Id.)

On June 18, 2001, the state court held a hearing on Jones's motion for a new trial. (Lodgment No. 2, Rep.'s Tr. at 597-668.) After the hearing, the trial court denied the motion. (Lodgment No. 1, Clerk's Tr. vol. 2, 281, June 18, 2001; Lodgment No. 2, Rep.'s Tr. vol. 3, 686, June 18, 2001.) Four alibi witnesses, a defense expert, Jones and Mr. Taggart all testified. (Lodgment No. 2, Rep.'s Tr. at 597-668.)

At the hearing, Jones's wife, Latania, testified that Jones was home with her on the morning of the robbery. (Lodgment No. 5, People v. Jones, slip op. at 9.) Latania's sister, who was dating Penton at the time of the incident, also testified. She stated that she frequently traveled from Los Angeles to San Diego in cars rented by Penton. (Id.) She also testified that she told Penton that Jones had been arrested in Penton's rental car, and Penton replied that he was going to report the car stolen. (Id.)

Latania's mother testified that she saw Jones at his home at about 9:45 a.m. on the morning of the robbery. (Id.) A neighbor of Jones also testified that she saw him in the apartment complex laundry room at approximately 10:00 a.m. the same morning. (Id.)

A forensic specialist, Lisa Di Meo, testified that the fingerprinting left on the plastic bag belonged to Jones. However, she also testified that she had found fingerprints on the duct tape used to bind Hughes (which had not previously been tested by the state) that did not belong to Jones. (Id.) Hughes had previously identified Petitioner as the person that bound his arms with duct tape. (Lodgment No. 2, Rep.'s Tr. vol. 1, 325.)

Mr. Taggart testified that he spoke to Jones's wife about a potential alibi defense. (Lodgment No. 5, People v. Jones, slip op. at 9.) However, Mr. Taggart explained that she was ultimately unable to testify at trial. Mr. Taggart did not recall Jones giving him the names of other potential alibi witnesses. (Id. at 10. ) He also stated that he did not hire an investigator because he did not have the funds. Mr. Taggart was now aware that he could have obtained county funds for an investigator. (Id.)

Mr. Taggart admitted he knew about the fingerprint evidence almost immediately after being retained by Jones. (Id.) He made a general discovery request and subsequent oral requests to the prosecutor for fingerprint evidence. (Id.) However, Mr. Taggart did not make specific written requests for evidence and did not file a motion to compel. (Id.)

When Mr. Taggart was questioned at the hearing, he was not asked about the rejected plea bargain. (Id. at 655-76.) Instead, Jones's new counsel asked Mr. Taggart about alibi witnesses. (Id. at 655-60, 666-67, 673-76.)

Jones also testified at the hearing. He stated that he gave Mr. Taggart names of potential alibi witnesses and that Mr. Taggart never told him that he needed additional funds to conduct an investigation or retain expert advice. (Id.) During his testimony, Jones did not say that he desired to plead guilty as the trial judge had offered. (Id. at 677-83.) Instead, he said that he told Mr. Taggart about his alibi defense. (Id. at 655-76.)

The trial court denied Jones's motion, concluding that counsel faced "insurmountable problems" in defending Jones. (Id.) Specifically, the court found that counsel could not have overcome the eyewitness identifications, Jones's fingerprint on the bag found at the scene, the fact that he was driving Penton's car when apprehended, and his possession of a gun matching the description of the gun used during the robbery. (Id. at 11.) The court also found that the alibi defense was not credible. (Id.)

On June 20, 2001, Petitioner was sentenced to thirty-seven years in prison, comprised of the middle term of three years for the robbery, ten years for the firearm enhancement, eight months for each of the five attempted robbery counts, three years and four months for the firearm enhancement on each of those counts, eight months for each of the two false imprisonment counts, and enhancements of one year and four months for each of the two false imprisonment counts. (Lodgment No. 1, Clerk's Tr. vol. 1, 238-39, June 26, 2001; Lodgment No. 2, Rep.'s Tr. vol. 3, 701-02, June 20, 2001.) The judge also imposed one-year enhancements for each of the prison priors, which were stayed pursuant to California Penal Code section 654. (Lodgment No. 1, Clerk's Tr. vol. 1, 238; Lodgment No. 2, Rep.'s Tr. vol. 3, 702.)

III. Jones's Habeas Petition

Jones appealed his conviction and sentence to the California Court of Appeal by filing a direct appeal and a petition for writ of habeas corpus. (Lodgment No. 3, Appellant's Opening People v. Jones, No. D038250 (Cal. Ct. App. Oct. 2, 2002; Lodgment No. 4,Pet. for Habeas Corpus, In re Jones, No. D039422 (Cal. Ct. App. Oct. 2, 2002).) Jones argued, among other things, that he received ineffective assistance of counsel at trial and during plea negotiations, and that there was insufficient evidence to convict him on certain counts of attempted robbery and certain gun allegations. (See Lodgment No. 3, Appellant's Opening Br. at 13-55, People v. , No. D038250; Lodgment No. 4, Pet. for Habeas Corpus at 8-13, In re Jones, No. D039422.)

On October 2, 2002, after consolidating Petitioner's appeal and habeas petition, the appellate court affirmed Jones's conviction. (Lodgment No. 5, People v. Jones, No. D038250, slip op. at 31 (Cal. Ct. App. Oct. 2, 2002).) Jones then filed a petition for review in the California Supreme Court. (Lodgment No.6, Pet. for Review, People v. Jones, No. S111271 (Cal. Jan. 21, 2003).) The petition was denied without citation. (Lodgment No. 7, People v. , No. S111271, slip op. at 1 (Cal. Jan. 21, 2003).)

On April 10, 2003, Petitioner filed his first habeas petition in the California Supreme Court, which he later withdrew. (Lodgment No. 8, Pet. for Habeas Corpus, Jones v. Calderon, No. S114976 (Cal. July 25, 2003); Lodgment No. 9, In re Jones, No. S114976, order at 1 (Cal. July 25, 2003).) On July 21, 2003, Petitioner filed a federal Petition for Writ of Habeas Corpus in this Court. [Doc. No. 1.] Jones then filed a second habeas petition with the California Supreme Court on July 31, 2003. (Lodgment No. 10, Pet. for Habeas Corpus, Jones v. Calderon, No. S117839 (Cal. Apr. 14, 2004).)

Soon thereafter, Petitioner filed a First Amended Petition in this Court deleting his unexhausted claims and seeking a stay of the petition. [Doc. Nos. 5, 7.] On September 4, the Court granted Jones's request while he exhausted certain claims in state court. [Doc. No. 8.] The Court subsequently granted two extensions of the stay. [Doc. Nos. 15, 20.]

The California Supreme Court denied Petitioner's second habeas petition on April 14, 2004. (Lodgment No. 11, In re Jones, No. S117839, slip op. at 1 (Cal. Apr. 14, 2004).) Jones then filed an Amended Petition in this Court. [Doc. No. 21.] Respondent filed an Answer [doc. no. 29] and Memorandum of Points and Authorities [doc. no. 30] on September 29, 2004. Petitioner then filed a Traverse. [Doc. No. 32.]

Judge Brooks issued a Report and Recommendation Re Denial of Petition for Writ of Habeas Corpus on March 4, 2005. [Doc. No. 33.] On May 2, 2005, after Jones had filed Objections to the Report and Recommendation [doc. no. 34], Petitioner filed another request for stay and abeyance [doc. no. 35] so he could return to state court to exhaust four new claims.

Then Judge Brooks issued a second Report and Recommendation Re Denial of Motion to Amend and Request for Stay and Abeyance. [Doc. No. 40.] On March 29, 2006, the Court issued an Order [doc. no. 50] granting Petitioner's request to hold his Second Amended Petition in abeyance while he returned to state court to exhaust his new claims. (Order Granting Mot. to Amend at 12.) Correspondingly, the Court rejected the two Reports and Recommendations under submission. (Id.)

During this time, Jones filed his third state habeas petition on May 9, 2005, which he withdrew. (Pet'r's Response to Opp'n to Mot. to Amend, Ex. A 3-6; In re Jones, No. S133747, docket (Cal.) available at (search for case number "S133747," then follow "docket" hyperlink).)

Petitioner subsequently filed his fourth habeas state petition, which the California Supreme Court denied on May 24, 2006. (Supp. Lodgment No. 1, Pet. for Habeas Corpus at 4-7, In re Jones, No. S135905 (Cal. May 24, 2006); Supp. Lodgment No. 2, In re Jones, No. S135905, slip op. at 1 (Cal. May 24, 2006).)

Petitioner filed a Third Amended Petition in this Court on June 15, 2006. [Doc. No. 51.] Respondent filed an Answer on October 25, 2006. [Doc. No. 66.] Jones then filed a Traverse. [Doc. No. 69.]

Legal Standard

I. State Prisoner Habeas Standard

A federal court's duty in examining a state prisoner's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. To present a cognizable federal habeas corpus claim under AEDPA, a state prisoner must allege that his conviction was obtained "in violation of the Constitution or other laws or treaties of the United States." See 28 U.S.C. § 2254(a). Petitioner must allege that the state court violated his federal constitutional rights. See Reed v. Farley, 512 U.S. 339, 347 (1994).

AEDPA requires that federal courts deny state prisoners' habeas petition for claims the state courts have already adjudicated on the merits unless the adjudication of the claim (1) was contrary to, or involved an unreasonable application of, clearly established federal law as provided by the United States Supreme Court or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002).

A state court decision is "contrary to clearly established federal law" if the court (1) applies a rule that contradicts the governing law set forth in the Supreme Court cases, or (2) confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at the opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is an unreasonable application of the facts "if the state court identifies the correct governing legal principle from [the Supreme Court's] decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

The "novelty" in § 2254(d)(1) is "the reference to 'Federal law, as determined by the Supreme Court of the United States.'"Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320 (1997) (emphasis added). Section 2254(d)(1) "explicitly identifies only the Supreme Court as the font of 'clearly established' rules." Id. "[A] state court decision may not be overturned on habeas corpus review, for example, because of a conflict with Ninth Circuit-based law." Moore, 108 F.3d at 264. "[A] writ may issue only when the state court decision is 'contrary to, or involved an unreasonable application of, 'an authoritative decision of the Supreme Court.'" Id., see also Baylor v. Estelle, 94 F.3d 1321, 1325 th Cir. 1996).

Notably, AEDPA prescribes significant deference to the state courts. AEDPA provides that factual findings of the state court are presumed to be correct. 28 U.S.C.A. § 2254(e)(1) (West 2006). The Petitioner carries the burden of rebutting the presumption of correctness by clear and convincing evidence.

II. Reviewing a Magistrate Judge's R&R

The district court's duties in connection with a magistrate judge's R&R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). The district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 676 (1980). "When no objections are filed, the district court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law." Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). "Under such circumstances, the Ninth Circuit has held that 'a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo.' " Id. (quoting Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989)). In this case, Petitioner filed objections to the R&R. [Doc. No. 74.] Accordingly, this Court will make a de novo determination of factual findings as to those portions of the R&R to which objections have been made.

Petitioner's Objections

Because Petitioner has filed objections to the R&R, the Court must conduct a de novo review of the portions of the R&R to which objections were made. Petitioner objects to all of the findings in the R&R. Some of Petitioner's objections provide new explanations for his objection, while other objections restate the original claims in the habeas petition. Primarily, Petitioner objects to the R&R on the basis that his claims for relief meet both prongs required for the ineffective assistance of counsel claims, and that denial of habeas relief is an unreasonable application of clearly established federal law. Petitioner further asserts that, because he is able to establish ineffective assistance of counsel, the cumulative errors of his trial counsel resulted in a fundamentally unfair trial.


In the eight grounds for relief in Jones's Third Amended Petition, he makes ten claims that Petitioner argues entitle him to habeas relief: (1) ineffective assistance of trial counsel for failure to investigate his alibi defense and fingerprint evidence; (2) ineffective assistance of counsel for failure to impeach a critical prosecution witness; (3) ineffective assistance of counsel for failure to properly advise Jones of the consequences of rejecting a plea offer; (4) a violation of due process for the trial court's error in advising Petitioner of the possible sentencing consequences of rejecting a plea offer; (5) insufficient evidence to support his convictions for attempted robbery; (6) insufficient evidence to support the sentenceenhancements for use of a firearm; (7) ineffective assistance of counsel for failure to object to, or seek to suppress, evidence of a separate conviction; (8) a violation of due process by the introduction of irrelevant evidence of a separate conviction; (9) a violation of due process for the trial court's failure to give a limiting instruction regarding the use of the separate conviction evidence; and (10) cumulative error resulting in a fundamentally unfair trial. (Third Am. Pet. 6-13.)

Judge Brooks found that Petitioner was unable to satisfy both of the requisite prongs to establish ineffective assistance of counsel for Claims*fn1 1-3 (R&R at 22, 31-33, 35-47), and thus, cumulative error could not result in a fundamentally unfair trial (Claim 10) (R&R at 80-81). In addition, Judge Brooks found Claims 4-6 without merit. (See R&R at 42-47.) Finally, Judge Brooks found that Petitioner is not entitled to relief on Claims 7-9 because they were barred procedurally and by the AEDPA's statutes of limitations. (R&R at 75-80.)

Ineffective Assistance of Counsel

Jones alleges in grounds one and two of his Third Amended Petition that he received ineffective assistance of trial counsel when his attorney (1) failed to investigate his alibi defense and fingerprint evidence; (2) failed to impeach a critical prosecution witness; and (3) failed to properly advise Petitioner of the consequences of rejecting an offered plea agreement. (Third Am. Pet. 6-8, 17-36.)

In deciding a § 2254 habeas petition, this Court reviews the "last reasoned" state court decision. Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). The California Supreme Court summarily denied Jones's petition for review and his second and fourth habeas petitions, which Jones filed after withdrawing his first and thirdpetitions. (Lodgment No. 7, Jones, No. S111271, slip op. at 1; Lodgment No. 11, Jones, No. S117839, slip op. at 1; Supp. Lodgment No. 2, Jones, No. S135905, slip op. at 1.) Therefore, this Court "looks through" those denials to the California Court of Appeal's reasoned opinion on Petitioner's direct appeal. Medina, 386 F.3d at 877.

The Sixth Amendment guarantees criminal defendants effective assistance of counsel. Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000); see McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (stating, "It has long been recognized the right to counsel is the right to the effective assistance of counsel.") (citations omitted). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set the federal standard for resolving ineffective assistance of counsel claims. "The benchmark for judging any claim of ineffectiveness must be whether 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.

Under Strickland, a habeas petitioner alleging constitutionally ineffective assistance of counsel claims must meet each prong of a two-part test: First, Petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing norms of practice. Id. at 687-88. Second, Petitioner must also show that the defendant was prejudiced , in the sense that he would have received a more favorable result but for counsel's unprofessional errors. Id. Courts need not address both prongs if the petitioner alleging ineffective assistance makes an insufficient showing on one. Id. at 697 (stating, "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").

A court's review of counsel's performance should be "highly deferential" because there is a strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987); see also Strickland, 466 U.S. at 690. "A lawyer generally is presumed competent, and it is the burden of the accused to overcome this presumption." Dows, 211F.3d at 485 (citing United States v. Cronic, 466 U.S. 648, 658 (1984)); see also Strickland, 466 U.S. at 689-690. The Supreme Court explained in Strickland:

"The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client."

Strickland, 466 at 690.

A petitioner must also demonstrate prejudice in that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 694. Courts will presume that a defendant has suffered prejudice "when counsel was either totally absent or prevented from assisting the accused during a critical stage of the proceedings, or if counsel entirely failed to subject the prosecution's case to meaningful adversarial testing." Hays v. Alabama, 85 F.3d 1492, 1496-97 (11th Cir. 1996) (citing Cronic, 466 U.S. at 662); see also Dows, 211 F.3d at 485. Otherwise, "the defendant must point to specific errors made by defense counsel that undermine confidence in the outcome of the trial." United States v. LaRouche, 896 F.2d 815, 823 (4th Cir. 1990); see Cronic, 466 U.S. at 659 n.26 (citations omitted); Strickland, 466 U.S. at 693-96.

A. Failure to Investigate Alibi Defense and Obtain Favorable Evidence

In his first claim for relief, Jones alleges his trial counsel failed to conduct a reasonable investigation of alibi witnesses and exculpatory fingerprint evidence, present witnesses in support of an alibi defense, and consult an expert regarding exculpatory fingerprint evidence. (Third Am. Pet. at 6.) Judge Brooks rejects Petitioners ineffective assistance of counsel claims because Petitioner fails to show that he was prejudiced under Stickland. (See R&R at 22, 25-34.) Thus, the magistrate court found, the state court ruling was not based on an unreasonable determination of the facts in light of the evidence or an unreasonable application of Strickland. See id. Petitioner objects to this finding, contending that his trial counsel's ineffective assistance ultimately failed to present any meaningful defense to the jury. (See Pet'r's Objs. at 3-14.) Petitioner points to several Ninth Circuit cases in which the court found, despite overwhelming evidence against a defendant, the failure to investigate and present alibi witnesses caused prejudice under Strickland. Thus, Petitioner argues, the state court's decision was contrary to or an unreasonable application of Strickland. (See id.)

In rejecting Jones's claim, the California Court of Appeal applied Strickland and concluded that Jones failed to demonstrate that he was prejudiced. (Lodgment No. 5, People v. , No. D038250, slip op. at 13.) The court stated:

The evidence of Jones's guilt was overwhelming. This included the undisputed fingerprint evidence on the bag carrying the guns and tape, the eyewitness identifications, and Jones's capture after fleeing police in Penton's rental car and throwing a gun out the window of the car. Thus, it is not reasonably probable that but for counsel's alleged deficiencies Jones would have received a more favorable result, and the court did not abuse its discretion in denying Jones's motion for a new trial. at 13-14.) Because the state appellate court determined Jones failed to satisfy theprejudice prong of Strickland, the court did not decide whether Petitioner's counsel's performance was deficient. (Id. at 13.)

Under § 2254(d), this Court's review is limited to considering whether the state appellate court's determination was contrary to, or an unreasonable application of, Strickland. The state court set forth the appropriate standard for evaluating prejudice under Strickland. Furthermore, it correctly observed that a court need not address the deficiency prong if the defendant fails to make a showing of prejudice. Strickland, 466 U.S. at 697. The California Court of Appeal found that Jones could not establish he had been prejudiced by the alleged deficiencies of his trial counsel. (Lodgment No. 5, Jones, No. D038250, slip op. at 13.) Consequently, Jones did not prove that counsel rendered ineffective assistance entitling him to a new trial. (Id. at 12-14.)

The Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689. Counsel's conduct is examined in light of all the circumstances present at the time. Id. at 690.

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. at 690-91.

i. Failure to Investigate and Present an Alibi Defense

Jones alleges that he had a viable alibi defense that was not presented at his trial. (Third Am. Pet. at 6.) He claims that he told his attorney about four potential alibi witnesses, but his attorney did not interview them. (Id.)

An attorney's choice not to call witnesses to testify at trial must be informed by an adequate investigation in order to be a reasonable, tactical decision that will be upheld under Strickland. Sanders v. Ratelle, 21 F.3d 1446, 1456-57 (9th Cir. 1994). "Ineffectiveness is generally clear in the context of complete failure to investigate because counsel can hardly be said to have made a strategic choice when [he] has not yet obtained the facts on which such a decision could be made." United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989) (citations omitted); see also Strickland, 466 U.S. at 690-91; Sanders, 21 F.3d at 1457.

Petitioner alleges that four alibi witnesses would have testified "he was at his home at around the time of the allegedcrimes." (Third Am. Pet. at 6.) The witnesses were Petitioner's wife, his mother-in-law, a neighbor, and his children's babysitter. (Id. at 18.) During the hearing on Jones's motion for a new trial, the court heard testimony from Jones and six witnesses. (See Lodgment No. 2, Rep.'s Tr. vol. 3, 599-683.) Three of the witnesses -- Loretta Bradley (the neighbor), Latania Jones (the wife), and Joyce Thomas (the mother-in-law) -- supported Petitioner's alibi defense by testifying about his whereabouts on the day of the robbery. (Id. at 601-02, 612-17, 642-43.) All three witnesses stated that Jones was at home fixing breakfast and doing laundry when the crimes were committed. (Id.)

Latania Jones, Petitioner's wife, testified that she told Michael Taggart, Petitioner's trial counsel, that she wanted to testify about Jones's alibi, but he told her "it wouldn't be a good thing to get on the stand and say that." (Id. at 609-11, 626.) Latania also stated that she told Mr. Taggart the identities of three other potential alibi witnesses. (Id. at 611-12.) Joyce Thomas (Petitioner's mother-in-law) and Loretta Bradley (the neighbor) both testified that Mr. Taggart never interviewed them, even though they would have testified at trial that Jones was at home when the robbery was committed. (Id. at 601-03, 642-44.)

The state court also heard testimony from Mr. Taggart about his investigation of the alibi defense and his decision not to present the defense at trial. (Id. at 657- 60, 666-76.) Mr. Taggart testified that he was only aware of Latania and the Jones's babysitter as potential alibi witnesses. (Id. at 669.) He stated that neither Petitioner nor Latania ever gave him the name or contact information for the babysitter, so he could notcontact her. (Id. at 670-71.) Mr. Taggart did not interview any witnesses regarding an alibi defense, aside from conversations he had with Jones's wife. (See id. at 658-60, 667.)

Mr. Taggart did not call any witnesses to testify in Petitioner's defense. (See Lodgment No. 2, Rep.'s Tr. vol. 2, 400, 411.) After the prosecution and Jones's co-defendant finished presenting their witnesses, Mr. Taggart indicated that he had planned to call Petitioner's wife to testify, but she had left the courthouse. (Id. at 398-99.) Counsel told the trial judge that Latania would testify as to Jones's alibi, and her testimony would be the only evidence he presented in his case-in-chief. (Id. at 400.) The next morning, when it was time for Mr. Taggart to begin his case, however, he rested without calling Latania to testify. (Id. at 411.)

Mr. Taggart explained that he had concerns about presenting the alibi defense at trial because he doubted its credibility. (Lodgment No. 2, Rep.'s Tr. vol. 3, 670.) In particular, he was troubled by the credibility of alibi testimony because Jones and his wife told Mr. Taggart they had a babysitter who would testify for Petitioner, but Jones never gave him the babysitter's name, address, or phone number so that Mr. Taggart could speak to her. (Id. at 659-60, 670,

Petitioner contends that Taggart met the babysitter before trial. (Pet'r's Obj. to R&R at 7-8.) The babysitter submitted an affidavit asserting that she met Taggert prior to the trial and provided him her contact information. (Id., Exhibit C Dec. of LaTosha Jones.) However, this affidavit is dated March 7, 2003, long after the trial. (See id.)

At the hearing, Jones's wife Latania testified that the babysitter went with her to meet with the attorney. (Lodgment No. 5, People v. Jones, slip op. at 9.) Meanwhile, Mr. Taggart testified that he was told there was a babysitter who was potentially an alibi witness, but he was never given her name or contact information so he could contact her. (Id.) The trial judge did not resolve the factual dispute of whether or not Taggart actually met the babysitter prior to trial. See id.) The court found that even if Taggart's performance was deficient, Jones did not suffer prejudice by counsel's performance because there was indisputable evidence that tied Jones to the crime. (Id.) Thus, whether Taggart met the babysitter is not the issue for this Court, but whether the state court's finding that Petitioner was not prejudiced by the failure of counsel to present alibi witnesses because of the indisputable evidence was contrary to or an unreasonable application of Strickland. See 28 U.S.C 2254(d)(1). Further, the state court found the alibi witnesses were internally inconsistent and not credible. (Lodgment No. 2, Rep.'s Tr. vol. 3, 699-700.) This Court defers to that factual determination. See 28 U.S.C. 2254(e)(1). Petitioner has the burden of rebutting this determination with clear and convincing evidence. Id. Due to the timing of the submission of the affidavit, Petitioner has not met this burden.

Counsel's concerns about the credibility of Petitioner's alibi witnesses and the viability of the defense is a strategic reason for not presenting the defense at trial. Although Mr. Taggart did not speak to the babysitter before Jones's trial, he did speak with Latania and Jones; and from their representations, he doubted the credibility of the defense. "[F]ew decisions a lawyer makes so heavily on professional judgment as whether or not to proffer a witness at trial[.]" Alcala v. Woodford, 334 F.3d 862, 871 (9th Cir. 2003) (quoting Lord v. Wood, 184 F.3d 1083, 1095 (9th Cir. 1999)). Accordingly, Petitioner has failed to overcome the presumption that Mr. Taggart's decision not to present an alibi defense as a reasonable, tactical decision. See Strickland, 466 U.S. at 689; see also Siripongs v. Calderon, 133 F.3d 732, 735 (9th Cir. 1998) (finding counsel's performance to be based on a reasonable tactical decision when, after hiring an expert and investigating a possible defense, counsel determined it was not credible enough to present to the jury). Mr. Taggart's decision is validated by the state court's findings in its hearing on a motion for new trial. (Lodgment No. 2, Rep.'s Tr. vol. 3, 699-700.)

Jones has also failed to show that he was prejudiced by Mr. Taggart's decision not to present an alibi defense. The state trial court found the testimony of Petitioner's alibi witnesses (all of whom were family members or friends of Jones) had "very little, if any, merit." Id. The court determined that much of the testimony was internally inconsistent. (Id. at 699.) This Court defers to these credibility determinations. Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir. 1998); Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir. 1990); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) ("Title 28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.")

Jones points the Court's attention to Lord v. Wood, 184 F.3d 1083, 1093 (9th Cir. 1999), where the Ninth Circuit found the petitioner was prejudiced by his counsel's failure to present three potential alibi witnesses. (Third Am. Pet. at 22; Traverse at 5.) Thatcase is distinguishable from Petitioner's: In Lord, the alibi witnesses were unrelated to the defendant; thus, they did not have any motive to lie. Lord, 184 F.3d at 1095. Here, the alibi witnesses are all family members or friends of Jones, so they lack the inherent credibility of the disinterested witnesses in Lord.

Furthermore, the court in Lord explained that the defense counsel's failure to present alibi testimony was more questionable in light of specific weaknesses in the prosecution's case (including a lack of DNA evidence or witnesses to the murder). Here, the witness identification and fingerprint evidence on the plastic bag directly linked Petitioner to the scene of the crime.*fn2

Petitioner also points the Court to Brown v. Meyers, 137 F.3d 1154 (9th Cir. 1999), where the Ninth Circuit found the petitioner was prejudiced by his counsel's failure to present alibi witnesses. (Third Am. Pet. at 22; Traverse at 5; Pet'r's Objt. at 17.) In Brown, the court explained that the missing testimony of the alibi witnesses would have "altered significantly the evidentiary posture of the case." Brown, 137 F.3d at 1157. Here, alibi witnesses would not have significantly altered the evidence against Petitioner. (See Lodgment No. 2, Rep.'s Tr. vol. 1, 325.) The state court found the evidence against Petitioner "insurmountable." (Id.)

As this Court defers to the state court's credibility determination, there is no reasonable probability that the alibi testimony would have altered the outcome of the trial. Petitioner has failed to show a reasonable probability that the outcome would have been different if his attorney had pursued an alibi defense.Thus, Petitioner's ...

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