The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner represented by counsel, proceeding on an amended petition for writ of habeas corpus (filed May 6, 2005). Petitioner challenges his 2002 conviction on charges of attempted deliberate and premeditated murder, first degree burglary, mayhem, torture, vehicle theft*fn1, removing a telephone line, violation of a court order with physical injury and two counts of abusing or endangering the health of a child. Petitioner is serving a sentence of life in prison with the possibility of parole and a consecutive term of five years.
Petitioner seeks relief on the grounds that his trial and appellate counsel rendered ineffective assistance for the following reasons: 1) failure to challenge the appointment of only one mental health professional to evaluate competency; 2) failure to challenge the finding of competency based solely on one psychologist's report; 3) failure to challenge the competency finding without a jury; 4) failure to raise an insanity defense; 5) failure to challenge on appeal the presence of a support person during witness testimony; 6) failure to challenge on appeal the introduction of genital injury evidence; 7) failure to argue for a self-defense instruction; 8) failure to argue for a lesser included offense charge; 9) failure to challenge the jury instructions on willfully false statements.
After carefully considering the record, the court recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 495, 117 S.Ct. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
III. Standards for an Evidentiary Hearing
The ordinary standards under federal law for an evidentiary hearing, which are well known and well established in the Ninth Circuit, are as follows. "To obtain an evidentiary hearing on an ineffective assistance of counsel claim, a habeas petitioner must establish that (1) his allegations, if proven, would constitute a colorable claim, thereby entitling him to relief and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts." Correll v Stewart, 137 F.3d 1404, 1413 (9th Cir. 1998). Nevertheless, the court does not have to hold an evidentiary hearing when the record clearly refutes the collateral factual allegations raised by petitioner. Schiro v. Landrigan, __U.S.__, 127 S.Ct. 1933, 1940 (2007). Moreover, Schriro also announced that in determining whether to grant an evidentiary hearing the federal court must apply the AEDPA deferential standards to legal and factual questions necessarily reached by the state courts. Id. Thus, for example, if the reasons for counsel actions were at issue, but under deferential standards, the court could not find prejudice, no evidentiary hearing would be necessary.
In addition, the undersigned emphasizes that in order to obtain an evidentiary hearing, the claim, when viewed in light of the allegations, must be colorable. "It is well settled that '[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.'" Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). This includes the recitation of critical facts supporting the alleged violation, including any requirement of prejudice. The necessity for the statement of a colorable claim is important for the resolution of several claims herein without holding an evidentiary hearing.
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.
The victim and the two children of defendant and the victim all testified at trial. The following is a summary of their testimony (any conflicts in which are resolved in favor of the judgment).
The victim and the defendant separated in July 2000, when he moved out of their home. She obtained a restraining order against him in December 2000. Divorce proceedings were pending. As of February 28, 2001, the defendant had not seen his children since the separation.
On that date, the victim returned to her home about 4:30 p.m. after picking up the children (born 1991 and 1993) at school. There were no cars parked outside the house. The victim sat down on the sofa with her daughter while the children watched television. The defendant abruptly emerged from the bathroom, holding a pellet gun. The victim ran to the front door. The defendant fired at her, then stopped her escape by beating her on the head with the gun until it broke into two pieces. He dragged her into the kitchen.*fn2 Their daughter heard him use a phrase twice that in their culture meant he desired a reconciliation. He began to stab the victim with a knife from his pocket.*fn3 Their son testified the defendant also stabbed her with a knife from the kitchen. The children testified that the defendant "started jumping on her back" a "[w]hole bunch of times." He laid a towel over the victim's face, grabbed the keys to her car, and left with the children, taking them to his sister's house. When the children questioned his actions, he told them to be quiet or else he would throw them under the wheels of the car. The victim was hospitalized for over three weeks. She could not speak until May 2001, has recurring dizzy spells, and needs someone to watch her. The trauma surgeon described her injuries as including three deep stab wounds to the neck that perforated her esophagus and trachea, multiple cuts to her face, black eyes from a skull fracture, a broken cheekbone, and lacerations on her hand, thigh, and vaginal walls.
In the kitchen, investigators found two bent and bloodied knives, one of which also had hair on it. All the phone lines in the house had been cut.
By way of defense, the defendant presented evidence of an organic brain disorder, which left him with diminished intelligence and unable to control his impulses. This was the result of a motorcycle accident in 1985, after which he had been in a coma for three days.
California Court of Appeal Opinion (Opinion) at 1. See also 2003 WL 2292528.
V. Argument & Analysis A. Ineffective Assistance of Trial and Appellate Counsel
All claims in the instant petition were denied by the state court without an explicated opinion. If a state court denies constitutional claims without an explicated decision, a federal court reviewing a habeas corpus application pursuant to § 2254(a) "ha[s] no basis other than the record for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context." Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "While Supreme Court precedent is the only authority that is controlling under AEDPA, we look to Ninth Circuit case law as 'persuasive authority for purposes of determining whether a particular state court decision is an "unreasonable application" of Supreme Court law.' " Luna v. Cambra, 306 F.3d 954, 960 (9th Cir.2002). Thus, pursuant to Delgado, the Court must conduct an independent review of the record to determine whether the state court's decision was objectively unreasonable. In Delgado, the Ninth Circuit held that, "Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law." 223 F.3d at 982; see also Luna, 306 F.3d at 954 (quoting Fisher v. Roe, 263 F.3d 906, 915 (9th Cir. 2001) (internal citation omitted) ("We reverse only if 'a careful review of the record and the applicable case law leaves us with the "firm conviction" that the state court was wrong.' ")).
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063 (1984). 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 upon as having produced a just result. Id., 104 S.Ct. at 2064.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064. The defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064. The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir. 2001) (finding no deficient performance by counsel who did not retain a ballistics expert on a menacing charge where the same expert had been used in the successful defense of the same defendant on a felon-in-possession charge); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994); but cf. United States v. Palomba, 31 F.3d 1456, 1466 (9th Cir. 1994) (presumption of sound trial strategy not applicable where indicia of tactical reflection by counsel on issue absent from record). The reasonableness of counsel's decisions may be assessed according to professional norms prevailing at the time of trial. Silva v. Woodford, 279 F.3d 825, 846 (9th Cir. 2002).
Second, the defendant must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687 104 S.Ct. at 2064. The test for prejudice is not outcome-determinative, i.e., defendant need not show that the deficient conduct more likely than not altered the outcome of the case; however, a simple showing that the defense was impaired is also not sufficient. Id. at 693, 104 S.Ct. at 2067-68. The defendant must show 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. Id., 466 U.S. at 694, 104 S.Ct. at 2068; see, e.g., Jones v. Wood, 207 F.3d 557, 562-63 (9th Cir. 2000) (failure to investigate and present "other suspect" evidence); Hart v. Gomez, 174 F.3d 1067, 1073 (9th Cir. 1999) (failure to introduce evidence that corroborated testimony of a key defense witness whom the jury might otherwise not believe necessarily undermined confidence in the outcome); Brown v. Myers, 137 F.3d 1154, 1157 (9th Cir. 1998) (failure to investigate and present alibi witnesses prejudicial where, without corroborating witnesses, defendant's bare testimony left him without a defense); United States v. Span, 75 F.3d 1383, 1390 (9th Cir. 1996) (failure to request jury instruction prejudicial where reasonable probability defendants would have been acquitted with instruction); Palomba, 31 F.3d at 1465-66 (error that may increase defendant's sentence prejudicial even if reversal would not shorten prospective jail time); Sanders, 21 F.3d at 1461 (counsel's failure to interview individual who had confessed to crime and whom three eyewitnesses had identified as culprit prejudicial); Smith v. Ylst, 826 F.2d 872, 875 (9th Cir. 1987) (mental incapacity of counsel does not require per se reversal of conviction; defendant has burden to point to specific errors).
The Strickland standards apply to appellate counsel as well as trial counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989).
Claim 1 - Failure to Challenge Appointment of Only One Psychologist
Petitioner argues that trial counsel erred in not objecting to the appointment of one court ordered psychologist and should have requested two psychologists to assess petitioner's competency to stand trial and appellate counsel was ineffective for failing to raise the issue on appeal. Amended Petition (AP) at 7.
It is a violation of the Due Process Clause to require an incompetent defendant to stand trial. Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373 (1996); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836 (1966). As stated by the Supreme Court, "[a] defendant may not be put to trial unless he 'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him.'" Cooper v. Oklahoma, 517 U.S. at 354, 116 S.Ct. at 1377. Due process requires that a trial court conduct a hearing on a defendant's mental competence to stand trial when the trial court is confronted with evidence that raises a "bona fide doubt" as to the defendant's mental competence. Pate, 388 U.S. at 385, 86 S.Ct. at 842 .
California Penal Code § 1369 states in part:
The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof.
In People v. Robinson, 151 Cal. App. 4th 606 (2007), the California Court of Appeal held that the defendant was not entitled to the appointment of two experts to evaluate him after the trial court declared a doubt as to his competency to stand trial. Id. at 618. The statutory requirement of appointing two experts would have been triggered by defense counsel informing the court that defendant was not seeking a finding of incompetence. Id.
In the instant case, petitioner's defense counsel informed the court that on defense counsel's initiative petitioner had been evaluated by a psychiatrist and there were concerns about petitioner's competency to stand trial. Clerk's Transcript (CT) at 10. Pursuant to Cal. Penal Code § 1368, the trial court set a competency hearing and appointed one doctor, Dr. Shawn Johnston to evaluate petitioner's competency. CT at 10. Dr. Johnston noted:
There are no indications, for example, that any significant cognitive deficits and/or psychotic symptomatology specifically impair his ability to describe his thoughts, feelings, or actions at the time of the commission of the alleged offenses. Nor are there any indications that he is presently incapable of understanding the kind of legal strategy or outcome in the present case that would be in his best interest. Indeed, he is even capable of providing an exculpatory explanation with regard to the allegations against him (i.e., namely, that his assault against his wife was based on self-defense as a result of her threatening him with a pistol and attempting to rob him). While I have no way of assessing the veracity of this [Petitioner]'s claims, his exculpatory explanation does not include any of the kind of delusional thinking or possible hallucinations which could be of concern and a signal a possible psychosis. Thus, even though his explanation ...