The opinion of the court was delivered by: Mary M. Schroeder, United States Circuit Judge
Before the Court is Thomas Hill's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is DENIED.
FACTS AND PROCEDURAL BACKGROUND
On May 5, 2003, while incarcerated, Hill stabbed his cellmate, Kenneth Fowler, twelve times in the arm and once in the left thigh with a prison-made weapon. A correctional officer heard a yell for help coming from Hill's cell, and observed Hill making jabbing motions toward Fowler. Officers responding to the attack witnessed Hill flush the toilet. The weapon was later recovered from that toilet.
On February 18, 2004, Hill was charged with (1) assault with a deadly weapon and by means of force likely to produce great bodily injury by a prisoner serving less than a life term, Cal. Penal Code § 4501, and (2) possession of a deadly weapon by a prisoner, Cal. Penal Code § 4502(a). The complaint further alleged that Hill suffered three prior serious felonies and that he came within the provisions of California's Three Strikes law. After a jury trial, Hill was found guilty of both counts and sentenced to 35 years to life.
Hill maintained that Fowler initiated the attack. Hill contended that he wrestled the weapon from Fowler, utilized it in self-defense, and attempted to flush the weapon down the toilet in an effort to prevent Fowler from re-gaining possession of the weapon. During trial, Hill complained to the court that his attorney was refusing to call Fowler and Cornelius (Fowler's cellmate subsequent to Hill) as witnesses. After conducting a hearing pursuant to People v. Marsden, 2 Cal. 3d 118 (1970), the trial court found that defense counsel's decision not to call Fowler and Cornelius was supported by sound tactical reasons. Accordingly, the court denied the Marsden motion and refused to replace Hill's attorney.
Hill appealed to the California Court of Appeal, alleging that the trial court erred in denying his Marsden motion and failing to construe his motion to relieve counsel as a request for self-representation pursuant to Faretta v. California, 422 U.S. 806 (1975). With respect to the Marsden motion, the Court of Appeal found that defense counsel's decision not to call Fowler or Cornelius was not an unreasonable tactical decision or one that was likely to result in ineffective representation. The Court stated:
At the Marsden hearing, defense counsel explained that he had decided not to call Fowler because he foresaw only three possible outcomes: Fowler could refuse to testify, or he could testify that defendant initiated the attack, neither of which would help defendant's case. Alternatively, if Fowler testified to initiating the attack, defense counsel believed that the prosecution would introduce evidence that both defendant and Fowler were affiliated with a prison gang, the Skins. Defense counsel believed that evidence of gang affiliation would outweigh any beneficial testimony Fowler could provide.
As to Cornelius, defense counsel explained that even if Cornelius's testimony could overcome hearsay obstacles, it would still open the door to introduction of prejudicial prison gang evidence
Here, defendant is correct that defense counsel did not know exactly what Fowler or Cornelius would testify to if called as witnesses. However, at the Marsden hearing, defense counsel explained that he had considered every scenario of Fowler and Cornelius testifying, and he articulated reasonable grounds why it was in defendant's best interest not to call them to testify. Knowing precisely what Fowler and Cornelius would testify to would not have changed this comprehensive calculus.
With respect to Hill's contention that the trial court should have considered his motion to relieve counsel as a motion to represent himself, the Court found that Hill's request for self-representation was equivocal and therefore inadequate under Faretta. See People v. Hines, 15 Cal. 4th 997, 1029 (Cal. 1997).
On December 10, 2007, Hill filed the current habeas petition alleging that the trial court's refusal to grant Hill's request to relieve counsel violated Hill's constitutional rights under the Sixth and Fourteenth Amendments, and that the trial court's failure to consider Hill's request for self-representation violated the Sixth Amendment. For the reasons discussed below, the petition is denied.
The writ of habeas corpus is available to "a person in custody pursuant to a judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). As dictated by the Antiterrorism and Effective Death Penalty Act ...