The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner has requested an evidentiary hearing to prove his allegations of ineffective assistance of counsel with respect to his assertion that counsel should have called witnesses to back up his contentions that he had no motive to aid and abet the attempted murders of two juveniles. Petitioner further asserts that the witnesses might well have buttressed his defense theory that he was simply an unwilling, unknowing chauffeur for the perpetrator. For the reasons set forth below, the motion for evidentiary hearing is denied without prejudice.
The request for evidentiary hearing, and especially the prejudice analysis required for an ineffective assistance claim, require a full detailing of the facts. Those facts set forth by the California Court of Appeal on affirming the verdict satisfy this requirement.
On the night of March 28, 2001,FN3 seventeen-year-old A.B. was at home in Vallejo with his friend D.R., who was fifteen years old. A.B. received a page and intended to walk to a pay telephone in order to return the call, as the home telephone was disconnected. As they left the house, they saw appellant Ernest Lee Vaden-an acquaintance of A.B.'s mother-outside sharing a beer. Vaden was with another man, Theodore Stith. A.B. asked if he could borrow Vaden's cell phone. Vaden agreed and led A.B. to his car where the cell phone was.
FN3. All dates refer to the 2001 calendar year unless otherwise indicated.
All four of them walked over to where Vaden's Nissan Maxima was parked and got in the car. Vaden sat in the driver's seat, Stith sat behind him, A.B. was in the front passenger seat and D.R. sat in the back seat behind A.B. Vaden said that he had an errand to run while A.B. returned his telephone call. No one objected to riding along with him. Stith asked Vaden to take him to American Canyon to see a girl.FN4 FN4. This was D.R.'s testimony. A.B. did not recall hearing Stith say this.
Once the telephone call was completed, A.B. noticed that the car was on the freeway heading out of Vallejo. Suddenly, Stith loudly accused A.B. of helping someone burglarize Vaden's home. Stith pulled out a silver semiautomatic pistol and pointed it at A.B. Vaden-although less hostile than Stith-encouraged these accusations. Vaden said "If you don't ... tell me who did it, this [is] going to turn into the shit you see on [sic ] the movies."He seemed more upset with the person who had arranged for A.B. to burglarize his home than with A.B. A.B. knew that Vaden's house had been burglarized, but he denied being involved in the crime. The young men wanted to get out of the car, but there was no chance to do so-they were moving too fast on the freeway. On Stith's command, D.R. emptied his pockets and removed most of his clothing. Stith stated his intention to shoot A.B. Vaden drove off the freeway onto a dark country road FN5 and parked the car. Stith ordered D.R. to remove the last of his clothing. He ordered A . B. to undress, too, ripping the young man's shirt off when he thought A.B. was taking too long to comply. Naked, A.B. and D.R. squatted on the ground as they were ordered to do. FN5. This road was later identified as Highway 12 outside of Suisun in Solano County.
Vaden continued to question A.B. about the burglary. Vaden said "Why don't you just tell us[?]""Save me a lot of trouble.""We know you did it...." "Just ... say who sent you and we can end this."When Stith seemed to believe A.B.'s denials of involvement and wanted to call things off, Vaden refused. "[N]o, ... it's too far gone. This has to be done," he told his companion. He told Stith: "You shoot him, and then I'm going to shoot the other one."Vaden said to A.B.: "I'm gonna count to three, and then if you don't tell me, you are gonna die."Stith wrapped the barrel of the gun in D.R.'s tee-shirt and pointed it in A.B.'s face.
*2 Vaden stood nearby in the road, acting as lookout. As VadenFN6 counted, Stith shot A.B. in his left eye. D.R. got up and ran when he saw his friend get shot. He fell into a creek and hid in some nearby bushes. He could hear Vaden and Stith splashing in the water asking where he went. They left after a minute or two. D.R. waited another 15 or 30 minutes, then headed back toward the freeway. Naked along the freeway, he flagged down a truck driver and told him that A.B. had gotten shot. The driver called the police.
FN6. This was A.B.'s testimony. D.R. told the jury that Stith did the counting, but Vaden ordered him to do so.
Meanwhile, A.B. lay on the ground for some time, thinking only of his pain. After a while, he realized that he was alone. A.B. ran up a hill and hid in some bushes. He heard Vaden, who sounded upset, return to the area saying "We gotta find him." A.B. remained in hiding for about five minutes, at which time he saw the Nissan drive away. He walked about three-quarters of a mile down the road where he found a call box. The police located A.B. standing at a freeway call box. He was naked, muddy, very upset, bleeding from one eye, and shivering.
Vaden was arrested the following day. During a prearrest stakeout of Vaden's apartment, police observed Stith visit the apartment complex while they waited for Vaden. Vaden smelled of alcohol when he was questioned by police, who suggested that Stith might have been the shooter. Vaden denied any involvementhe told police that he had been out of the ...