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Madsen v. McGrath

March 12, 2008

RICHARD EUGENE MADSEN, PETITIONER,
v.
JOE MCGRATH, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) ADOPTING THE MAGISTRATE JUDGE'S REPORT; [Doc. No. 120] (2) REJECTING THE PETITIONER'S OBJECTIONS; [Doc. No. 127] (3) DENYING THE PETITION FOR HABEAS CORPUS; [Doc. No. 46] and (4) DENYING CERTIFICATE OF APPEALABILITY.

Petitioner Richard Eugene Madsen ("petitioner"), a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his January, 1998 convictions for aggravated mayhem, assault, possession by a felon of a sharp instrument, and making a terrorist threat. (Doc. No. 1.) This matter was referred to United States Magistrate Judge Barbara L. Major pursuant to 28 U.S.C. § 636(b)(1)(B). On November 9, 2007, Magistrate Judge Major issued a Report and Recommendation ("Report") recommending the Court deny the petition. (Doc. No. 120.) Petitioner filed objections to the Report on January 30, 2008. (Doc. No. 127.)

Following de novo review of petitioner's claims, the Court finds Magistrate Judge Major's Report to be thorough, complete, and an accurate analysis of the legal issues presented in the petition. For the reasons explained below, the Court: (1) adopts in full Magistrate Judge Major's Report; (2) rejects the petitioner's objections; (3) denies the petition for writ of habeas corpus; and (4) denies a certificate of appealability.

BACKGROUND

State Proceedings

The Court hereby incorporates by reference the magistrate judge's accurate recitation of the facts as determined by the California Court of Appeal. (Report at 2-7.) As the magistrate judge correctly noted, the Court presumes state court findings of fact to be correct. 28 U.S.C. § 2254(e)(1). To summarize, petitioner was a prisoner in the George Bailey detention center when on April 24, 1997, a fellow inmate, Joseph Cornejo, was attacked. Before the attack, petitioner and two other inmates, Edward Bergman and Gilberto Espinoza, had been in the dayroom with Cornejo. After the attack, petitioner and the other two inmates were found in the upstairs shower area. Petitioner and Espinoza had sustained minor injuries. Two unaltered razors were found hidden in petitioner's mattress. Two days later, another inmate, Victor Solano, gave a correctional officer a "kite," or jailhouse letter, written by petitioner. The letter acknowledged petitioner "did him" and included a newspaper article about the Cornejo incident.

On June 2, 1997, a razor blade, apparently removed from a disposable razor, was found hidden in the spine of a legal pad in petitioner's cell. The legal pad was found inside an accordion folder and contained petitioner's handwriting. Other papers belonging to petitioner were also found in the folder. On June 23, 1997, petitioner threatened to kill a correctional officer, Deputy Sheriff Michael Bradburn, for refusing to postpone petitioner's shower time. Petitioner said he could get Bradburn when he was released or could have someone else "whack" him. When another correctional officer told petitioner Bradburn had filed a report, petitioner responded he wanted to apologize to Bradburn and "squash" the matter.

The jury found petitioner guilty of the four charged offenses and found the enhancement allegations to be true. The court then conducted a bifurcated trial on petitioner's prior convictions.

The jury found petitioner had previously been convicted of assault with a deadly weapon in 1984, and assault with a deadly weapon and personally inflicting great bodily injury in 1989. Petitioner filed a motion for a new trial on multiple grounds, including juror misconduct and ineffective assistance of counsel. The trial court denied the motion. The court sentenced petitioner pursuant to California's three strikes law to consecutive terms of 25 years to life for each of counts two, three, and four. After staying a term of 25 years to life on count one and adding enhancements of three years for infliction of great bodily injury and five years for each of the two serious felony prior convictions, the court imposed an aggregate term of eighty-eight years to life.

Petitioner appealed, contending the trial court erred by (1) denying his motion to substitute counsel, (2) denying his peremptory challenge of the trial judge, (3) denying his motion to sever the indictment's four counts, (4) denying his new trial motion based on juror misconduct, (5) admitting inflammatory gang evidence, (6) admitting evidence of his prior acts of possession of razors to establish his knowledge of the hidden razor blade, and (7) denying his motion to strike his 1984 prior conviction. (Lodgment 3 at 1-2.) He also argued he was denied effective assistance of counsel. (Id. at 2.) In an unpublished opinion dated November 28, 2000, the California Court of Appeal reversed and remanded for a new evidentiary hearing on the allegations of jury misconduct but denied the remaining grounds. (Id.) On remand, the trial court held an evidentiary hearing on juror misconduct at which petitioner presented no new evidence. The court issued an amended order on March 21, 2002, again denying petitioner's motion for new trial. (Lodgment 4.) Petitioner appealed, and the Court of Appeal affirmed in a written order of November 6, 2003. (Lodgment 5.)

Federal Procedural Background

Petitioner's case has a protracted procedural history in federal court, which the Court will only summarize briefly. Petitioner filed a 438-page petition for writ of habeas corpus on August 29, 2005. (Doc. No. 1.) On June 29, 2005, the Court dismissed the petition for not presenting a short and plain statement of his entitlement to relief. (Doc. No. 36.) Petitioner filed an amended petition on September 15, 2005. (Doc. No. 46.) Petitioner then filed a motion for the Court to stay his amended petition while he sought to exhaust his unexhausted claims. (Doc. No. 48.) Before that motion had been fully briefed, petitioner filed a motion requesting the Court proceed with his claims on the merits due to the California Supreme Court's denial of his habeas petition. (Doc. No. 67.) Accordingly, on February 1, 2006, Magistrate Judge Major denied the motion for stay and abeyance as moot and ordered Respondent to respond to the petition. (Doc. No. 70.) Respondent moved to dismiss the petition on March 21, 2006. (Doc. No. 80.) The Court denied the motion to dismiss on August 8, 2006 and ordered Respondent to answer the petition. (Doc. No. 88.) After several extensions of time, Respondent filed an answer on March 16, 2007. (Doc. No. 97.) Petitioner filed a traverse on June 26, 2007. (Doc. Nos. 114, 116, & 118.) In a Report dated November 9, 2007, Magistrate Judge Major recommended the Court deny the petition in its entirety. (Doc. No. 120.) Petitioner filed objections on January 30, 2008. (Doc. No. 127.)

DISCUSSION

The magistrate judge correctly identified the standard of review for a petition for writ of habeas corpus under Section 2254. For those claims raised by petitioner's appeal, the Court analyzes the California Court of Appeal's decision as the "last reasoned decision" on the merits of petitioner's case. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). For those claims presented only in the petition for writ of habeas corpus to the California Supreme Court, the Court must conduct an independent review of the record to determine whether the denial is contrary to, or an unreasonable application of, clearly established Supreme Court law. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Finally, the Court may only deny a petition with unexhausted claims on the merits if it is "perfectly clear" the unexhausted claims are meritless. Granberry v. Greer, 481 U.S. 129, 135 (1987).

A petition under 28 U.S.C. § 2254 can be granted only if the Court determines the California courts decided petitioner's case in a manner that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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); Williams v. Taylor, 529 U.S. 362, 403, 412-13 (2000).

Because petitioner has objected to the Report in its entirety, the Court reviews the Report de novo. 28 U.S.C. § 636(b)(1)(C); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004). The petition is organized as presenting fourteen claims, but most of the claims present multiple distinct grounds, totaling thirty-two alleged constitutional violations.

1. Right to Counsel: Trial Court's Denial of Petitioner's Motion to Substitute New Counsel

Petitioner claims the trial court violated his Sixth Amendment right to counsel by denying his motion to appoint new counsel.

State Proceedings

At the eve of trial, petitioner requested retained counsel, Nicholas De Pento, be permitted to substitute for his public defender, Thomas Ulovec. The trial court denied the ninety-day continuance of trial that would have been necessary to allow Mr. De Pento to familiarize himself with the case. The California Court of Appeal rejected petitioner's claim that this was a violation of petitioner's Sixth Amendment right to retained counsel. Petitioner had four months to retain counsel prior to his trial, and his failure to do so until the last court day before trial was apparently due to his parents' delay in agreeing to pay for counsel. (Lodgment 3 at 10-11.) The Court of Appeal found the trial court acted within its discretion. The prosecution had concerns regarding witness safety because of threats made by petitioner, petitioner had planned to escape during transportation to the courthouse, and one witness was being housed in protective custody. Accordingly, the substantial delay would have prejudiced the prosecution.

Magistrate Judge's Report

The Report correctly noted there is no controlling United States Supreme Court authority on the discretion of a trial court to deny substitution of counsel where the substitution would require delay. (Report at 16.) The Supreme Court has held trial courts have broad discretion in matters of continuances. "We have recognized a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness . . . and against the demands of its calendar." United States v. Gonzalez-Lopez, ___ U.S. ____, 126 S.Ct. 2557, 2565-66 (2006) (internal citations omitted). In the Ninth Circuit, trial courts have wide discretion to deny substitution of counsel where the substitution would require a delay. United States v. Prime, 431 F.3d 1147, 1155 (9th Cir. 2005). The magistrate judge concluded the denial was thus not contrary to, or an unreasonable application of, clearly established United States Supreme Court law and therefore recommended this claim be denied.

Petitioner's Objections

Petitioner objects the trial court did not "make any analysis of its calendar as it related" to the request for substitution. The court did, however, consider the fairness to the prosecution and the safety of witnesses. Petitioner also objects the trial court erroneously believed the offense occurred in 1987 and thus was extremely old. (Objections at 5; Traverse at 46.) The transcript does reflect the court stated "When did this occur? Back in '87." (Lodgment 12 at 3.) The offenses actually took place in 1997. The court's decision was nonetheless within its discretion based upon the other considerations before the court, specifically, fairness and safety. Finally, petitioner argues he was at that time embroiled in a "toxic conflict" with his counsel and had experienced a breakdown in communication. The record reflects neither petitioner, appointed counsel, nor retained counsel informed the court at that time of any such conflict. (Id. at 1-3.) Petitioner argues the court had a sua sponte duty to inquire as to the state of the relationship between petitioner and his counsel under United States v. Walker, 915 F.2d 480, 483 (9th Cir. 1990) (overruled on other grounds). In that case, appointed counsel informed the court his client was no longer speaking to him and refused to assist counsel in his defense. The trial court found that because the attorney was legally competent to represent the defendant, the motion should be denied, despite the complete breakdown of the attorney-client relationship. Walker does not support petitioner's argument that the court must sua sponte inquire of a defendant seeking substitution of counsel whether the reason for the request is that the relationship has become toxic. In the present case, the trial court took into consideration the statements made by petitioner, his appointed attorney, and Mr. De Pento, as required by Walker. (Lodgment 12 at 1-3.)

Accordingly, the Court rejects petitioner's objections, adopts the Report, and denies the petition as to this claim.

2. Right to Counsel: Trial Court's Marsden Hearing and Hearings During Trial

Petitioner claims his Sixth Amendment right to counsel was violated when the trial court failed to conduct an adequate inquiry into his complaints about his attorney in his Marsden hearing and during other closed hearings during trial.

State Court Proceedings

The trial court held a Marsden hearing on January 12, 1998, prior to the beginning of trial. Petitioner requested a new attorney at the hearing because his counsel was not conducting the investigation of the trial as he had requested. (Lodgment No. 13 at 7-21.) Thomas Ulovec, petitioner's appointed counsel, addressed petitioner's concerns at the hearing. He stated he had hired an investigator, interviewed witnesses where available, made tactical decisions as to the effectiveness of each witness, and considered petitioner's proposed trial strategies concerning background checks and photographs. The court thus denied petitioner's motion. (Id. at 21.) Petitioner never stated he was unable to communicate with his attorney, although the court asked him several times if had any other complaints. (Id.)

The court held three other hearings during trial, on January 16, 20, and 22 of 1998. On January 16, petitioner informed the court he believed Ulovec had not adequately investigated Deputy Bradburn's background. (Lodgment 13 at 334.) Petitioner summarized his complaint for the court as follows: "I just felt all these things, you know, should have been brought up and should have been checked by us, you know, and that's my concern there." (Id. at 338.) Ulovec then explained why the information regarding Bradburn's background was irrelevant and unavailable. (Id. at 338-39.) The court again concluded the disagreement was merely over tactical decisions, and petitioner indicated he would raise the matter again in the future. (Id. at 341.)On January 20, petitioner again raised his concerns before the state court. (Id. at 470.) He explained to the court how he felt a good attorney would have handled Bradburn as a witness. On January 22, petitioner told the court he felt Ulovec should have filed a motion regarding the loss of the razor blade and should have requested a third party culpability instruction. (Id. at 648.)

Petitioner did not raise these issues in his state court appeal. He presented them in his petition for habeas review by the California Supreme Court, which was silently denied.

Accordingly, as the magistrate judge correctly noted, the Court must conduct an independent review of the record to determine whether the denial is contrary to, or an unreasonable application of, clearly established Supreme Court law. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

Magistrate Judge's Report

The magistrate judge correctly identified the clearly-established law regarding the Sixth Amendment right to counsel. A state court may not summarily deny defendant's motion for new counsel without further inquiry. Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982). A lawyer may make tactical decisions even in the face of his client's explicit disapproval. Brookhart v. Janis, 384 U.S. 1, 8 (1966); see also Faretta v. California, 422 U.S. 806, 820 (1975) ("[L]aw and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas."). Applying these principles, the magistrate judge concluded the trial court did not err in denying petitioner's motion for new counsel by inquiring into the reasons for petitioner's motion and, upon learning those reasons were disagreements over trial strategy properly within the scope of counsel's control, denying the motion.

Petitioner's Objections

In his objections, petitioner continues to assert Ulovec should have followed petitioner's proposed trial strategies. (Objections Part One at 9-12.) The Court will later address petitioner's claims Ulovec's failure to adopt those strategies rendered his assistance ineffective. Here, petitioner claims the trial court should have granted his motion for new counsel based on the toxic relationship between petitioner and Ulovec. Petitioner was given the opportunity to exhaustively detail his disagreements with Ulovec over strategy. Because none of those disagreements indicated a "toxic relationship," the court appropriately denied petitioner's request for substitution. Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007) ("An irreconcilable conflict in violation of the Sixth Amendment occurs only where there is a complete breakdown in communication between the attorney and client, and the breakdown prevents effective assistance of counsel.").

Accordingly, the Court rejects petitioner's objections, adopts the Report, and denies the petition as to this claim.

3. Ineffective Assistance of Counsel Due to Conflict of Interest

Petitioner also claims a conflict of interest existed due to trial counsel's prior representation of an individual inmate who petitioner believes could have been a defense witness.

State Court Proceedings

Petitioner did not raise this alleged conflict during his numerous opportunities at trial. Petitioner claims he informed his attorney D.J. Bratton would be a witness for the defense. Ulovec apparently represented Bratton prior to his representation of petitioner. During his Marsden hearing, petitioner methodically listed his grievances with Ulovec's representation, including the names of many witnesses for the defense that Ulovec had not interviewed, but petitioner did not mention Bratton. (Lodgment 13.) Petitioner did not raise this claim in his appeal, but did present it to the California Supreme Court in his petition for writ of habeas corpus.

Magistrate Judge's Report

The magistrate judge correctly identified the clearly-established Supreme Court law as articulated in Burger v. Kemp, 483 U.S. 776, 783 (1987). Petitioner must show Ulovec actively represented conflicting interests, and that this conflict adversely affected his performance. Id. The magistrate judge concluded that there was no evidence Ulovec was aware Bratton could be a witness, no evidence Bratton knew or could testify to anything relevant, and no evidence Ulovec chose not to put Bratton on the stand due to his representation of Bratton. The magistrate judge recommended the Court deny the petition because petitioner has not met his burden of establishing prejudice.

Petitioner's Objections

Petitioner argues his claim should succeed because Ulovec has not presented an affidavit contradicting petitioner's contention Ulovec decided not to call Bratton as a witness due to a conflict of interest. (Objections Pt. One at 12-14.) Because the burden is on petitioner to show prejudice, the Court rejects this argument. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980) (stating a "possibility of conflict is insufficient to impugn a criminal conviction"); Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir. 2006) ("To show an actual conflict resulting in an adverse effect, [petitioner] must demonstrate 'that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.'") (internal citation omitted).

Accordingly, the Court rejects petitioner's objections, adopts the Report, and denies the petition as to this claim.

4. Due Process of Law: Trial Court's Denial of Peremptory Challenge

Petitioner claims the trial court improperly denied his peremptory challenge of Judge Vargas, the Superior Court judge at his trial, under California Code of Civil Procedure Section 170.6. The court denied the writ as untimely. Petitioner did not appeal.

Magistrate Judge's Report

The magistrate judge found the claim had not been exhausted, but could nonetheless be considered because it is "perfectly clear" it is without merit. Cassett, 406 F.3d at 623-24. The magistrate judge correctly found that to the extent petitioner claims the denial of his writ was contrary to state law, petitioner does not present a federal claim. Estelle v. McGuire, 502 U.S. 62, 68 (1991) (federal habeas relief does not lie for errors of state law). Petitioner also claims the denial of the writ was a denial of due process. But, as the magistrate judge correctly noted, petitioner has presented no evidence Judge Vargas was biased, and thus has not shown his trial was fundamentally unfair in violation of the Due Process Clause.

Petitioner's Objections

Petitioner first objects that this claim is exhausted. (Objections Pt. 1 at 15.) The Court has carefully reviewed petitioner's 265-page petition for writ of habeas corpus to the California Supreme Court. (Lodgment 11.) While petitioner did allege the failure to appeal the denial of the writ constituted ineffective assistance of counsel, he did not argue the trial court's denial of the writ deprived him of due process of law. (Id. at 107-113.) Accordingly, this claim was not presented to any state court and is unexhausted.

Substantively, petitioner objects that under Hicks v. Oklahoma, 447 U.S. 343 (1980), a state's failure to follow its own procedural laws constitutes a denial of due process. In that case, the Court held that the state procedural law at issue, providing a right to sentencing by jury, had created a "substantial and legitimate expectation that [a defendant] will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion." Id. at 345. In Hicks, the violation of state law was also a violation of due process. Petitioner incorrectly argues that all violations of state law thus violate due process. Under Estelle, "it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." 502 U.S. at 68. In this case, petitioner has not shown or claimed any prejudice resulting from the state court's denial of his peremptory challenge. Accordingly, petitioner's due process rights were not violated by Judge Vargas presiding over petitioner's trial.

The Court therefore rejects petitioner's objections, adopts the Report, and denies the petition as to this claim.

5. Ineffective Assistance of Counsel: Failing to Appeal the Denial of Peremptory Challenge

Petitioner alleges Ulovec's failure to appeal the denial of his peremptory challenge of Judge Vargas constituted ineffective assistance of counsel.

State Court Proceedings

While petitioner did not raise this claim in his appeal, he raised it in his petition for writ of habeas corpus to the California Supreme Court, which the court silently denied.

Magistrate Judge's Report

Because the magistrate judge found petitioner had not shown prejudice stemming from the trial by Judge Vargas, the Report recommended the Court also deny the petition on this ground.

Petitioner's Objections

Petitioner states prejudice is shown by his eighty-eight years to life sentence. (Objections Pt. 1 at 18.) Petitioner also argues he does not need to establish prejudice because petitioner's constitutional right to a different judge cannot be waived by counsel. (Id.) Petitioner relies on Anders v. California, 386 U.S. 738 (1967), in which the Court held an attorney appointed for an appeal could not merely file a letter brief stating a criminal defendant had no grounds to appeal.

Id. at 745. The defendant in that case had a valid constitutional claim. No cases, however, support petitioner's view the Constitution provides a right to a peremptory challenge of a judge. Thus, the Court agrees with the magistrate judge that petitioner must show prejudice under Strickland v. Washington, 466 U.S. 668 (1984). Because there is no reason to think petitioner would not have received such a lengthy sentence before another judge, petitioner has not shown prejudice. Accordingly, the Court rejects petitioner's objections, adopts the Report, and denies the petition as to this claim.

6. Due Process of Law: Improper Joinder of Counts

Petitioner claims his due process rights were violated by the joinder of counts one and two, concerning the attack on Cornejo, with count three, possession of a sharp object, and count four, the threat against Deputy Bradburn.

State Court Proceedings

The California Court of Appeal rejected petitioner's claim. The court found petitioner could not show prejudice in the form of a reasonably probability he "would have received a more favorable result had the charged offenses been separately tried." (Lodgment 3 at 16.) The court held that some of the evidence on the various counts was cross-admissible. It also found the evidence on all four counts was strong, so it was unlikely any of the evidence had an "spillover effect" and improperly influenced the jury on the other counts.

Magistrate Judge's Report

The magistrate judge correctly identified the clearly-established United States Supreme Court law. Under United States v. Lane, 474 U.S. 438 (1986) "[i]mproper joinder does not, in itself, violate the Constitution. Rather, misjoinder 'rises to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his [constitutional] right to a fair trial.'" Id. at 449 (citations omitted). The magistrate judge concluded petitioner has not shown fundamental unfairness with his conclusory claims about the "spillover effects" of the evidence on the separate counts.

Petitioner's Objections

Petitioner claims the evidence on different counts impermissibly influenced the jury. Petitioner's objections rely on his other claims that (1) evidence was improperly admitted, (2) the evidence on count three was insufficient to support a conviction, and (3) the jury instructions were erroneous and confusing. (Objections Pt. 1 at 20-23.) These specific claims are denied infra. Because, as the magistrate judge correctly noted, much of the evidence on the different counts was cross-admissible, and the judge gave the jury limiting instructions and instructed the jury to consider each count separately, petitioner has not shown joinder rendered his trial fundamentally unfair. Cf. Bean v. Calderon, 163 F.3d 1073, 1083 (9th Cir. 1998) (reversing conviction for misjoinder where weak and strong charges were joined together, evidence was not cross-admissible, prosecution emphasized similarity of the offenses, and court gave instructions applying only to one offense without specifying the limitation).

Accordingly, the Court rejects petitioner's objections, adopts the Report, and denies the petition as to this claim.

7. Ineffective Assistance of Counsel: Failure to Call Certain Witnesses

Petitioner claims trial counsel was ineffective in failing to interview and present the testimony of eight witnesses: William Berger, "Mr. Viezaga,"*fn1 Dennis Bratton, Greg Jennings, Jesse Provencio, Juan Gonzalez, Linda Provencio, and Leslie Bowers. Petitioner claims Berger would have testified he did not see petitioner enter Cornejo's cell. Bratton would have allegedly testified Cornejo later acknowledged petitioner was not his attacker. Petitioner claims Jennings would have testified Victor Solano, the lead prosecution witness, once fought with petitioner and expressed hatred and animosity toward petitioner. Jesse Provencio would have allegedly testified Bradburn told petitioner he would "get him" after the incident between Bradburn and petitioner. Petitioner states Gonzalez would have testified Bradburn stated he would "set you [Gonzalez] up just like I did [petitioner]."

State Court Proceedings

The California Court of Appeal found Ulovec was not ineffective in failing to call Berger, Bratton, Jennings, Jesse Provencio, and Gonzalez. As to Berger, the court found the proffered testimony was not very helpful and petitioner had not established Ulovec's decision was not a rational tactical decision. (Lodgment 3 at 22.) The court also found no evidence counsel knew about Bratton and his proposed testimony and no showing the testimony would not have been excluded as hearsay. (Id. at 22-23.) The court denied the claim as to Jennings because petitioner did not show he had informed counsel about the witness. (Id. at 23.) The court also found rational counsel's tactical decision not to attack Solano's credibility, through Jennings' statements or otherwise. As to Jesse Provencio, the court found counsel had made an informed tactical decision not to call him. Provencio's lawyer told Ulovec that Provencio was not credible and would make a bad witness. (Id. at 24.) As to Gonzalez, the Court found petitioner had not shown Ulovec knew about Gonzalez, that Gonzalez would have made a good witness, or that the testimony would have supported the defense. (Id. at 24-25.)

Petitioner did not mention Viezaga in his appeal, but raised the claim in his petition filed with the California Supreme Court, which was silently denied. Petitioner claims Viezaga would have testified Bergman, not petitioner, entered Cornejo's cell before Cornejo emerged, bleeding.

Petitioner made a claim concerning Linda Provencio and Leslie Bowers in his motion for new trial, but did not mention these witnesses in his appeal or his petition for writ of habeas corpus to the California Supreme Court.

Magistrate Judge's Report

The magistrate judge correctly identified the clearly-established federal law regarding ineffective assistance of counsel claims. In Strickland v. Washington, 466 U.S. 668 (1984), the Court explained "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." Id. at 690-91. The magistrate judge concluded the state court's findings were supported by the record. Accordingly, the Report found the testimony petitioner argues should have been offered had little probative value, could potentially derail the defense case, would subject the witnesses to cross-examination and impeachment which would hurt petitioner's case, or was unknown to trial counsel prior to trial. The magistrate judge also found that because the petition did not identify the substance of the testimony of Linda Provencio and Leslie Bowers, petitioner had not established ineffective assistance of counsel or any resulting prejudice and thus this unexhausted claim should be denied as clearly non-meritorious.

Petitioner's Objections

Petitioner objects that Berger's testimony would have helped petitioner. (Objections Pt. 1 at 25.) Petitioner claims if Berger did not see petitioner enter the cell, that proves petitioner did not enter the cell. The Court disagrees, as the proferred testimony ("I did not see him enter") was far more equivocal than petitioner contends ("He did not enter"). Petitioner objects Ulovec should have spoken with Provencio rather than his attorney to make an independent determination whether Provencio would make a good witness. Under Strickland, counsel must make a "reasonable investigation" and "a heavy measure of deference" is given to counsel's judgments. 466 U.S. at 690-91. In this case, counsel was required to evaluate the credibility and effectiveness on the stand of multiple prison inmates. Thus the Court finds rational Ulovec's decision to rely on the judgment of Provencio's attorney that Provencio would make a bad witness. Cf. Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (finding counsel was not ineffective in relying on interviews taken by petitioner's previous attorney rather than repeating those interviews himself). Moreover, no prejudice can be shown because Provencio's proferred testimony was not helpful.

As to Gonzalez, Bratton, and Jennings, petitioner objects counsel should have presented their testimony because it was "extremely probative." (Objections Pt. 1 at 29-31.) Without a showing Ulovec knew or reasonably could have known of these witnesses and their proferred testimony, petitioner's claim nonetheless fails. Petitioner also concedes the witnesses would have been impeached. He nevertheless objects the witnesses could then have been rehabilitated, and without placing them on the stand, reasonable counsel cannot conclude the witnesses would not have been helpful. (Id.) The Court disagrees. Counsel can rationally decide not to offer the testimony of prison inmates who would likely do more harm than good to petititioner's defense.

Petitioner objects Ulovec did know about Viezaga because Viezaga's statement was included in the files which were returned to petitioner at the close of his case. (Objections Pt. 1 at 24.) Petitioner attaches the document reflecting Viezaga's statement as Exhibit A to his objections. The Court finds that even if counsel knew about Viezaga, he could have rationally decided not to offer another inmate's testimony and rely instead on that of petitioner's other defense witnesses, due to the impeachment and credibility problems which would have been presented by Viezaga's testimony.

Petitioner's objections identify the testimony that he claims could have been elicited from Linda Provencio and Leslie Bowers. (Objections Pt. 1 at 34.) Petitioner claims they would have stated petitioner knew threatening Bradburn was a felony, thus rebutting testimony petitioner later said threatening a guard is only a misdemeanor. This testimony is not exculpatory and reasonable counsel could have concluded this would have done petitioner's defense more harm than good. Moreover, the testimony goes to a collateral issue and does not raise questions which could have undermined the outcome. Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995) ("The type of corroborating evidence [petitioner] claims an investigation would have unearthed is so tenuously related to the defense that it belongs in the latter category of evidence in which the decision to search for it or neglect it is left to the discretion of the attorney.").

Accordingly, the Court rejects petitioner's objections, adopts the Report, and denies the petition as to this claim.

8. Ineffective Assistance of Counsel: Failure to Impeach Victor Solano

Petitioner argues Ulovec should have impeached Victor Solano and his tactical decision to try to use Solano's testimony to petitioner's advantage was irrational. Petitioner characterizes Solano as the star witness of the prosecution and a jailhouse informant for hire. During the Marsden hearing, counsel explained he attempted to use Solano's testimony to bolster the defense that another inmate was responsible for the attack on Cornejo.

State Court Proceedings

The California Court of Appeal found the decision rational because Solano's testimony suggested someone else, inmate Espinoza, had the opportunity to attack Cornejo. (Lodgment 3 at 26-27.)

Magistrate Judge's Report

The magistrate judge agreed the decision was rational. As described by Ulovec during Marsden hearing, he was attempting to "go through the back door through the prosecution's own witness" to establish petitioner's innocence. (Lodgment 13 at 16.) ...


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