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Wallace v. Marshall

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION


July 31, 2009

ANTHONY LEROY WALLACE, PETITIONER,
v.
JOHN MARSHALL, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Anthony Leroy Wallace, a state prisoner incarcerated at Folsom State Prison, seeks a writ of habeas corpus pursuant to 28 USC section 2254. For the reasons set forth below, a writ is DENIED.

I.

On October 15, 2002, after a jury trial in Fresno County superior court, petitioner was found guilty of felony vandalism (count 1), being under the influence of a controlled substance (count 2, a misdemeanor) and resisting arrest (count 3, a misdemeanor). The jury also found true the allegations that petitioner had suffered two previous "strikes" under California law and had served two prior prison terms. On April 3, 2003, the trial court sentenced petitioner to twenty-five years to life in state prison, plus two one-year enhancements and time served on the misdemeanor convictions.

On October 19, 2004, in a partially published opinion, the California Court of Appeal struck count 3 and modified petitioner's custody credit; in all other respects the judgment was affirmed. People v Wallace, 123 Cal App 4th 144 (2004).*fn1

Petitioner's petition for review with the California Supreme Court was denied on January 26, 2005. Petitioner's state habeas petitions were also denied.

II

The California Court of Appeal summarized the factual background of this case as follows:

One summer evening in Fresno, Anthony LeRoy Wallace's wife of two months, Arlissa Pointer Wallace, caught him smoking crack cocaine, called him a crack head, and told him to leave the house she had bought six or seven years before the marriage and had refinanced shortly after the marriage.*fn2 Although she had kept the house in her name, Wallace presumably had acquired a small community property interest through mortgage payments with community property funds.

Instead of leaving, however, Wallace began tearing up the house. Frightened, Pointer kept her distance from him as she opened the living room curtains in the hope a neighbor might see and call the police. He kept breaking things. Twice she dialed 911, but twice she hung up, fearing things would get much worse if he knew she had called. He left before the police arrived. She told a police officer that the only thing he had not broken in the house was his own stereo and that everything else in the house belonged to her. A couple of hours later, alerted by a neighbor to "incredible pounding, very, very loud noise" from the house, police officers found Wallace inside the house breaking things again. Only after he challenged three armed and uniformed officers to fight, did they subdue him with a taser and arrest him.

At trial, an expert witness testified to over $9,000 of damage to the house and to over $6,000 of damage to the furniture and furnishings. A jury found Wallace guilty of felony vandalism and of two misdemeanors-being under the influence and resisting, delaying, or obstructing an officer ("resisting")and found two assault with a deadly weapon priors true as both serious felony priors and prison term priors.

Opinion at 2-3.

III.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified under 28 USC section 2254, provides "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the

[p]petitioner is not challenging his underlying state court conviction." White v Lambert, 370 F3d 1002, 1009-1010 (9th Cir 2004). Under AEDPA, this court may entertain a petition for habeas relief on behalf of a California state inmate "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 USC § 2254(a).

The writ may not be granted unless the state court's adjudication of any claim on the merits: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 USC § 2254(d). Under this deferential standard, federal habeas relief will not be granted "simply because [this] 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 v Taylor, 529 US 362, 411 (2000).

While circuit law may provide persuasive authority in determining whether the state court made an unreasonable application of Supreme Court precedent, the only definitive source of clearly established federal law under 28 USC section 2254(d) rests in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id at 412; Clark v Murphy, 331 F3d 1062, 1069 (9th Cir 2003).

When a federal court is presented with a state court decision that is unaccompanied by a rationale for its conclusions, the court has 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 F3d 976, 982 (9th Cir 2000). In such situations, federal courts must conduct an independent review of the record to determine whether the state court decision is objectively unreasonable. Id. While federal courts "'are not required to defer to a state court's decision when that court gives [them] nothing to defer to, [they] must still focus primarily on Supreme Court cases in deciding whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law.'" Greene v Lambert, 288 F3d 1081, 1089 (9th Cir 2002) (quoting Fisher v Roe, 263 F3d 906, 914 (9th Cir 2001)). Furthermore, independent review of the record is not de novo review of the constitutional issue, but rather the only way a federal court can determine whether a silent state court decision is objectively unreasonable. Himes v Thompson, 336 F3d 848, 853 (9th Cir 2003). However, if the state court did not reach the merits of a claim, federal review of the claim is de novo. Nulph v Cook, 333 F3d 1052, 1057 (9th Cir 2003).

Even if a petitioner meets the requirements of § 2254(d), habeas relief is warranted only if the constitutional error at issue had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v Abrahamson, 507 US 619, 638 (1993). Under this standard, petitioners "may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in 'actual prejudice.'" Brecht, 507 US at 637, citing United States v Lane, 474 US 438, 439 (1986).

IV.

Petitioner seeks federal habeas relief based on 21 claims.*fn3 Grounds 1, 4-7, 12, 13, 19, 20 and 21 all allege ineffective assistance of counsel and will be considered after the remaining claims. Petitioner's claim for relief based on cumulative error (Ground 3) will be considered last.

A. GROUND 2

In Ground 2, petitioner maintains that his constitutional rights were violated due to prosecutorial misconduct. He maintains that: 1) he was tried and convicted on evidence known to be false; 2) the prosecutor improperly utilized petitioner's assault with a deadly weapon conviction and; 3) the prosecutor improperly introduced photos of the damage. The state court denied this claim in a summary opinion.

"The appropriate standard of review for [a prosecutorial misconduct claim] on writ of habeas corpus is the narrow one of due process, and not the broad exercise of supervisory power." Darden v Wainwright, 477 US 168, 181 (1986) (citations omitted). Thus, the court must determine whether the prosecutor's conduct "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id (citing Donnelly v DeChristoforo, 416 US 637 (1974). A defendant's due process rights are violated if a prosecutor knowingly relies on perjured testimony and fails to correct it. Napue v Illinois, 360 US 264, 269 (1959); Morales v Woodford, 388 F3d 1159, 1179 (9th Cir 2004). Prosecutors are not, however, held accountable for discrepancies in testimony where there is no evidence from which to infer prosecutorial misconduct. United States v Zuno-Arce, 44 F3d 142, 1423 (9th Cir 1995).

First, petitioner alleges that the prosecutor committed misconduct by relying on Pointer's testimony. Petitioner alleges that he was earlier accused by Pointer of rape and spousal abuse; these charges were dismissed and petitioner maintains that the dismissal confirms that Pointer was an unreliable witness. Petitioner also points to the fact that Pointer's testimony at trial contradicted her original statements to police about the vandalism. After conducting an independent review of the record, the court finds that the state court's summary dismissal of this claim was not objectively unreasonable under clearly established federal law. See Delgado, 233 F3d at 982.

Pointer did state at trial that she was responsible for some of the damage in the home. Reporter's Transcript at 315-317 (hereinafter "RT", submitted by respondent as Lodged Document 2). In so doing, however, she contradicted her original statements to Officer Payn and to her neighbor that petitioner was responsible. RT at 315-40. The record also indicates that, after responding to a call, testifying Officer Scott Payn observed petitioner throw something against the wall and tip something over inside the house. RT at 444. Officer Payn also observed that the damage to the house and furniture was far greater than it had been on his visit to the house two hours earlier. RT at 447. Pointer was not there at the time of the second visit, supporting an inference that petitioner and not Pointer was largely responsible for the property damage.

RT at 444-45.

In light of the physical evidence and Officer Payn's testimony, it was reasonable for the prosecutor to believe that Pointer's original account to police was accurate and that her recantation at trial was not. In addition, despite the fact that earlier charges of rape against petitioner had been dismissed, the corroborating evidence of vandalism made it reasonable for the prosecutor to believe in this particular case that Pointer had originally provided an accurate account of the vandalism to law enforcement. Based on all of the evidence in the record, petitioner cannot show either that Pointer's testimony was actually false or that the prosecution knew or should have known that it was false. Zuno-Arce, 339 F3d 886 at 889 (citing Napue, 360 US at 269-271). Accordingly, petitioner cannot establish that the prosecutor committed misconduct by relying on Pointer's original statements.

Second, petitioner argues that the prosecutor committed misconduct when she introduced petitioner's prior conviction for assault with a deadly weapon. Specifically, petitioner claims that the conviction was admitted "without proving the burden of proof to the jury." Amended Petition at 24.

Petitioner's claim is without merit. This court's independent review of the record confirms that the trial jury received extensive evidence of petitioner's prior convictions before finding them to be true. RT at 538-67. The evidence presented included pictures of the defendant, fingerprints of the defendant, the judgments in questions, paperwork from the counties and courts where petitioner was convicted of the prior charges, and a chronological record of petitioner's movement through the Department of Corrections, including any paroles and subsequent violations. RT at 541-51. Petitioner's attorney conducted cross-examination. RT at 547. The trial court instructed the jury as to the applicable burden of proof, and specifically stated that the jury was required to "consider each of the alleged prior convictions separately" and that the state had the burden of proving the truth of the convictions beyond a reasonable doubt. RT at 562-63. Accordingly, the state court's summary dismissal of this claim was not objectively unreasonable under clearly established federal law and petitioner's claim must be denied. See Delgado, 233 F3d at 982.

Finally, petitioner claims that the prosecutor committed misconduct by presenting photos of the damage. This claim is also without merit. The photos showed damage to the home, which was clearly relevant considering the charge against petitioner was felony vandalism. As discussed in greater detail infra, in the court's consideration of petitioner's related claim alleging that introduction of the photographs deprived him of his right to a fair trial, admission of the photographs was not unduly prejudicial. Accordingly, petitioner cannot show that the prosecutor's conduct in presenting the photos "so infected the trial process with unfairness as to make the resulting conviction a denial of due process." Darden, 477 US at 181. Because the state court's dismissal of this claim was not objectively unreasonable under clearly established federal law, petitioner's claim must be denied.

B. GROUND 8

In Ground 8, petitioner alleges that his due process rights were violated when the trial court instructed the jury that the fact that petitioner might have vandalized community property in which he had an ownership interest was no defense to the charge of vandalism. In so doing, petitioner also maintains that the state court's application of the vandalism statute to his actions was incorrect. The California Court of Appeal addressed these issues in a reasoned opinion on direct appeal.

To begin with, in a lengthy and detailed discussion, the state court addressed the scope of the vandalism statute, including the main question of "whether a spouse can be guilty of vandalizing community property and the other spouse's separate property inside the marital home." Opinion at 9. The court recognized that "[i]n People v Kahanic (1987) 196 Cal App 3d 461 * * *, we held that the vandalism statute applies to community property on the rationale that the "essence of the crime is in the physical acts against the ownership interest of another, even though that ownership is less than exclusive."*fn4 Opinion at 4. After further analysis of the existing statutory and caselaw, the court held that:

[W]e broaden our holding in Kahanic to embrace the emerging rule imposing criminal liability on a spouse for intentionally causing harm to property in which the other spouse has an interest, whether the property is individual or marital, whether the harm occurs outside or inside the marital home. (Kahanic, supra, 196 Cal. App. 3d at p 466; see e g, Jackson v United States (DC 2003) 819 A2d 963, 964-967 ("Jackson") [spouse criminally liable for harm to marital property at marital home under statute prohibiting harm to property "not his or her own"]; State v Superior Court (Ariz Cr App 1997) 188 Ariz 372 [936 P2d 558-559] [spouse criminally liable for harm to joint tenancy property of both spouses under statute prohibiting damage to "property of another person"]; State v Coria (2002) 146 Wash 2d 631 [48 P3d 980, 981-985] ("Coria") [spouse criminally liable for harm to community property to marital property at marital home under statute prohibiting damage to "property of another"]; Hughes v State (Alaska Ct App 2002) 56 P3d 1088, 1094-1095 [spouse criminally liable for harm to marital property at marital home under statute prohibiting damage to "property of another']; Ginn v State (2001) 251 Ga App 159 [553 SE 2d 839, 840, 842] [spouse criminally liable for harm to marital property at marital home under statute prohibiting damage to "any property of another"] * * * .*fn5 Accordingly, we answer in the affirmative the question before us and hold that a spouse can be guilty of vandalizing community property and the other spouse's separate property inside the marital home.

Opinion at 6-8. The Court of Appeal also considered and dismissed as without merit petitioner's arguments that: 1) he could not be guilty of vandalism unless he and his wife were engaging in family law litigation; and 2) the law was unconstitutionally vague. Opinion at 8-9.

Petitioner cannot demonstrate that the California Court of Appeal's reasoned decision was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court law. Nor can he demonstrate that the state court's factual findings were unreasonable. Petitioner can cite to no clearly established law indicating that the state court decision was in error.

In this case, the California Court of Appeal was engaged in an analysis and interpretation of California state law. A state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus. Bradshaw v Richey, 546 US 74, 76 (2005); Hicks v Feiock, 485 US 624, 629 (1988).

The state's highest court is the final authority on the law of that state. Sandstrom v Montana, 442 US 510, 516-17 (1979). Even a determination of state law made by an intermediate appellate court must be followed and may not be "'disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.'" Hicks, 485 US at 630 n 3 (quoting West v American Telephone & Telegraph Co, 311 US 223, 237-38 (1940)). A federal court may, however, re-examine a state court's interpretation of its law if that interpretation appears to be an obvious subterfuge to evade consideration of a federal issue. Mullaney v Wilbur, 421 US 684, 691 n 11 (1975).

Petitioner does not and cannot cite to any evidence either that the California Supreme Court would decide this matter differently or that the California Court of Appeal's decision was a subterfuge to evade consideration of a federal issue. The California Supreme Court denied petitioner's petition for review from the decision on direct appeal and later denied petitioner's habeas petition. Had the California Supreme Court wanted to overturn the California Court of Appeal's analysis of the state law at issue, presumably it could have done so, either on direct or collateral review of petitioner's case. There is also no evidence (nor does petitioner even assert) that the state court was engaged in an obvious subterfuge to avoid consideration of a federal issue. Mullaney, 421 US at 691. Accordingly, petitioner's claim that the state court interpretation of the vandalism was in error must be denied.*fn6

The California Court of Appeal also specifically addressed petitioner's claim of instructional error.

Wallace argues the special instruction on vandalism prejudiced him. The Attorney General argues the instruction correctly states the law. The instruction informed the jury:

"No act of vandalism of community property committed by one who has a property interest in the property is rendered less criminal by reason of that ownership interest. [¶] In the crime charged in Court One, Vandalism, the fact the defendant had or may have had an ownership interest in the real or personal property that was destroyed, damaged or defaced is not a defense and does not relieve him of responsibility for the crime."

First, on the premise only "a civil remedy in equity" for "breach of fiduciary duty" lies to redress harm by a spouse to community personal property because the law grants each spouse a "like absolute power of disposition" of community personal property "as the spouse has of the separate estate of the spouse" * * *, Wallace argues the special instruction improperly informed the jury his ownership interest was "no defense." Implicit in his premise is the shocking notion that each spouse has carte blanche to deface, damage, and destroy the community personal property estate, as he or she wishes, and that the criminal law offers no remedy to society or the other spouse. Our holding that a spouse can be guilty of vandalizing community property and the other spouse's separate property inside the marital home vitiates his premise. For want of a valid premise, his argument fails.

Second, on the premise the loss to each spouse from vandalism to community property is only half the total loss, Wallace argues that informing the jury vandalism by a spouse to community property is no "less criminal by reason of that ownership interest" could have induced a felony verdict for misdemeanor conduct if the total loss were less twice the felony threshold of $400. * * * An expert witness testified to over $9,000 of damage to the house and over $6,000 of damage to the furniture and furnishings. Whether by evidence of reasonable cost of repair or by inference of diminution in market value, the total loss was easily twice the felony threshold of $400. (See People v Yanez (1995) 38 Cal App 4th 1622, 1626-1627; § 594, subd (B)(1).) On that record, error, if any, was harmless. (People v Watson (1956) 46 Cal. 2d 818, 836.) The record refutes his argument, so his premise is moot.

Opinion at 9-10.

A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle, 502 US at 71-72. To obtain federal collateral relief for errors in a jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See id at 72; Cupp v Naughten, 414 US 141, 147 (1973). "[I]t must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Donnelly v DeChristoforo, 416 US 637, 643 (1974) (quoting Cupp, 414 US at 146). The instruction "may not be judged in artificial isolation," but must be considered in the context of the instructions as a whole and the trial record. See Estelle, 502 US at 72 (quoting Cupp, 414 US at 147). In other words, the district court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire process. See United States v Frady, 456 US 152, 169 (1982) (citing Henderson v Kibbe, 431 US 145, 154 (1977)).

A determination that there is a reasonable likelihood the jury has applied the challenged instructions in a way that violates the Constitution establishes only that a constitutional error has occurred. Calderon v Coleman, 525 US 141, 146 (1998). If constitutional error is found, the court also must determine the error had a substantial and injurious effect or influence in determining the jury's verdict before granting habeas relief. Id (citing Brecht, 507 US at 637).

Here, petitioner does not demonstrate that the state court's decision was an unreasonable application of United States Supreme Court precedent, or an unreasonable determination of the facts. 28 USC § 2254(d). As the court has already discussed supra, a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus. Bradshaw, 546 US at 76 (2005). Given that the state court's interpretation of the state law at issue regarding ownership interest as a potential defense did not run afoul of any clearly established United States Supreme Court law, petitioner cannot show that the jury instruction stating that law "so infected the entire trial that the resulting conviction violated due process." Cupp, 414 US 141. Accordingly, his claim must be denied.

C. GROUND 9

In Ground 9, petitioner also challenges the California Court of Appeal's interpretation of the vandalism statute. Here, he maintains that the state court unreasonably expanded the statute at issue, in violation of the Ex Post Facto Clause, the Supremacy Clause and due process. The California Supreme Court denied this claim, which petitioner raised in his state habeas petition, on the merits in a summary opinion.

The United States Constitution prohibits the federal government and the states from passing any "ex post facto Law." US Const, Art I, § 9, cl 3 (federal government); Art I, § 10, cl 1 (states). These clauses prohibit the government from enacting laws with certain retroactive effects: any law that (1) makes an act done before the passing of the law, which was innocent when done, criminal; (2) aggravates a crime or makes it greater than it was when it was committed; (3) changes the punishment and inflicts a greater punishment for the crime than the punishment authorized by law when the crime was committed; or (4) alters the legal rules of evidence and requires less or different testimony to convict the defendant than was required at the time the crime was committed. Stogner v California, 539 US 607, 611-612 (2003); Carmell v Texas, 529 US 513, 519-538 (2000). The Ex Post Facto Clauses are designed to prevent manifestly unjust and oppressive retroactive effects.

In applying the ex post facto prohibition of the Federal Constitution to state laws, a federal court accepts the meaning ascribed to them by the highest court of the state. Murtishaw v Woodford, 255 F3d 926, 964-665 (9th Cir 2001). But when their meaning is thus established, the issue of whether there has been an ex post facto violation is a constitutional question to be determined by the federal court. Id at 965.

Even though the Ex Post Facto Clause applies only to the legislative branch of government, there is a due process counterpart which prevents retroactive enlargement of the reach of criminal statutes by judicial interpretation. Rogers v Tennessee, 532 US 451, 455-456 (2001); Poland v Stewart, 117 F3d 1094, 1099 (9th Cir 1997). Retroactivity will not be at issue, however, where a state supreme court's interpretation of a statute after the defendant's conviction "merely clarified" the statute as properly interpreted at the time of the conviction. See Fiore v White, 531 US 225, 226 (2001).

Due process protects against judicial infringement of the right to fair warning that certain conduct will give rise to criminal penalties. Webster v Woodford, 369 F3d 1062, 1069 (9th Cir 2004) (discussing Bouie v City of Columbia, 378 US 347 (1964)). A judicial construction will run afoul of Bouie only if it "indefensible by reference to the law which had been expressed prior to the conduct in issue." Rogers v Tennessee, 532 US 451, 457 (2001) (internal quotations omitted). Bouie is not violated unless judicial construction of a criminal statute represents a "radical and unforeseen" departure from former law. Webster, 369 F3d at 1069.

The court has conducted an independent review of the record and finds that the state court's summary dismissal of this claim was not objectively unreasonable under clearly established federal law. See Delgado, 233 F3d at 982. Prior to petitioner's trial, the California Court of Appeal had already held that the vandalism statute applied to community property "on the rationale that the 'essence of the crime is in the physical acts against the ownership interest of another, even though that ownership is less than exclusive.'" Opinion at 4 (citing Kahanic, 196 Cal App 3d at 466). And as discussed in detail supra, the California Court of Appeal conducted an extensive analysis of the existing law in California and laws from other jurisdictions before deciding to "broaden our holding in Kahanic to embrace the emerging rule imposing criminal liability on a spouse for intentionally causing harm to property in which the other spouse has an interest, whether the property is individual or marital, whether the harm occurs outside or inside the marital home." Opinion at 6.

In light of the Kahanic decision and the California Court of Appeal's exhaustive discussion of the applicable authority, petitioner cannot show that the judicial construction of the statute at issue represents a "radical and unforeseen" departure from former law. Webster, 369 F3d at 1069. Nor can petitioner show that the state court's decision is "indefensible by reference to the law which had been expressed prior to the conduct in issue." Rogers, 532 US at 457 (2001). Accordingly, petitioner's claim must be denied.

D. GROUND 14

In Ground 14, petitioner alleges that the prosecution suppressed evidence favorable to his defense. Specifically, petitioner maintains that the prosecutor had evidence of Pointer's criminal background, drug addiction, false reports and jail phone call admissions that were not revealed. Petitioner also alleges that the prosecutor had previously dismissed rape and spousal abuse charges against petitioner because Pointer was not credible. Petition at 49.

This claim was presented to the California Supreme Court in petitioner's state habeas petition and was rejected on the merits in a summary denial. Because the state's rejection of this claim was summary, this court must conduct an independent review of the record and determine whether the state court's decision was objectively unreasonable under clearly established United States Supreme Court precedent. Greene, 288 F3d at 1089.

The prosecution has an constitutional obligation to disclose material exculpatory evidence to the defense. Brady v Maryland, 373 US 83, 87 (1963). To prove a Brady violation, three elements must be shown. "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Banks v Dretke, 540 US 668, 691 (2004) (citations omitted).

The Ninth Circuit has held, however, that "'where the defendant is aware of the essential facts that enable him to take advantage of any exculpatory evidence, the Government does not commit a Brady violation by not bringing the evidence to the attention of the defense.'" Raley v Ylst, 470 F3d 792, 804 (9th Cir 2006) (citing United States v Brown, 582 F2d 197, 200 (2d Cir 1978)). Thus, when a petitioner "possesse[s] the salient facts regarding the existence of the records that he claims were withheld", there is no Brady violation. Raley, 470 F3d at 804 (finding that when petitioner knows of the existence of the evidence, his counsel may seek the information via the discovery process); see also United States v Dupuy, 760 F2d 1492, 1502 n 5 (9th Cir 1985) (confirming that "[w]here defendants * * * had within their knowledge the information by which they could have ascertained the supposed Brady material, there is no suppression by the government.")

After an independent review of the record, the court finds that petitioner has not demonstrated that the state court's denial of petitioner's claim was objectively unreasonable. Petitioner is correct that the evidence at issue was favorable to him; at a minimum, it could have been used to further impeach Pointer. As respondent correctly points out, however, there is nothing to indicate that petitioner was not aware of this evidence; in fact, petitioner does not even argue in his pleadings that he was unaware of this potentially impeaching information about Pointer at the time of his trial. Petitioner was certainly aware of some of the evidence that he argues ought to have been disclosed; he maintains that Pointer made exculpatory admissions during recorded jailhouse phone calls to him.

The Ninth Circuit has concluded that a defendant who claims he was denied exculpatory evidence must show that he would have been unable to obtain comparable evidence by other reasonably available means. United States v Drake, 543 F3d 1080, 1090 (9th Cir 2008). Petitioner cannot do so here. As stated above, he was indisputably aware of the statements Pointer made to him during the jailhouse phone calls. In addition, petitioner was married to Pointer and they lived together, suggesting that he knew of her alleged criminal background and drug use.

Even if petitioner had not been aware of this potentially exculpatory evidence, he would not be able to show a Brady violation because he cannot demonstrate that any prejudice resulted from the alleged withholding of information. Banks, 540 at 691. Pointer was impeached when she testified at petitioner's trial; in fact, she recanted her earlier statements to police and testified that she was also responsible for the vandalism. RT at 315-16.

Had this further evidence about Pointer's background been introduced, the jury might have found her trial testimony, which was in petitioner's favor, to be even less credible. Because a habeas petitioner is not entitled to relief based on trial error unless he can establish that the error resulted in actual prejudice, petitioner's claim must be denied. Brecht, 507 US at 637.

E. GROUND 15

In Ground 15, petitioner alleges that the evidence presented at his trial was insufficient to support his conviction for felony vandalism. Specifically, he maintains that "there was no evidence to establish the fair market value of any item in question, or the diminution in value caused by" petitioner's vandalism. Petition at 51.

This claim was considered and rejected by the California Court of Appeal in a reasoned opinion on direct appeal. The court stated:

Both by evidence of the reasonable cost of repair and by reasonable inference of diminution in market value, a rational jury could find beyond a reasonable doubt that Wallace was guilty of felony vandalism because the damage was well over the statutory threshold. Our role in a challenge to the sufficiency of the evidence in a criminal case is limited to a determination whether, on the entire record, viewing the evidence in the light most favorable to the prosecution and presuming in support of the judgment every fact reasonably inferable from the evidence, a rational trier of fact could find the accused guilty beyond a reasonable doubt. (People v Ochoa (1993) 6 Cal 4th 1199, 1206.) By that standard, the evidence of damage is sufficient.

Opinion at 11.

Because due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged", In re Winship, 397 US 358, 364 (1970), a state prisoner who alleges that the evidence in support of his conviction was insufficient states a constitutional claim which, if proven, entitles him to federal habeas relief. Jackson v Virginia, 443 US 307, 321 (1979). The federal court must determine whether, "'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Payne v Borg, 982 F2d 225, 338 (9th Cir 1992) (citing Jackson, 443 US at 319). In order to prevail on such claims, a petitioner must demonstrate that no rational trier of face could have proof of doubt beyond a reasonable doubt.

Petitioner's claim must fail. He does not demonstrate that the state court's dismissal of his insufficiency of the evidence claim was an unreasonable application of United States Supreme Court precedent, or an unreasonable determination of the facts. 28 USC § 2254(d). The state court's decision, which found that "a rational trier of fact could find the accused guilty beyond a reasonable doubt", is in accord with Jackson. There was evidence presented at petitioner's trial that it would cost over $9000 to repair the damage done to the house and that the replacement value of the damaged furniture and other items was over $6000. RT at 473-475. Given that the threshold for felony vandalism under state law was damage of $400, a "'rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Payne, 982 F2d at 338 (citing Jackson, 443 US at 319).

Accordingly, this claim must be denied.

F. GROUND 16

In Ground 16, petitioner argues that the admission of certain photographs violated his right to a fair trial. Specifically, he alleges that photographs of the damaged property were unduly prejudicial because they did not reveal what property might have been damaged by petitioner's wife. The California Supreme Court denied this claim in an summary opinion.

The admission of evidence is not typically subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. Estelle, 502 US at 67-68; Henry v Kernan, 197 F3d 1021, 1031 (9th Cir 1999); Colley v Sumner, 784 F2d 984, 990 (9th Cir 1986). The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Walter v Maass, 45 F3d 1355, 1357 (9th Cir 1995); Colley, 784 F2d at 990. Only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. Jammal v Van De Kamp, 926 F2d 918, 919-20 (9th Cir 1991).

Petitioner cannot establish that an independent review of the record demonstrates that the state court's decision was objectively unreasonable under clearly established United States Supreme Court law. Petitioner was charged with felony vandalism, and he cannot deny that the photographs were relevant to show the property damage. The record indicates that, after responding to a call, testifying Officer Scott Payn observed petitioner throw something against the wall and tip something over inside the house. RT at 444. Petitioner's wife (Pointer) was not there at the time, supporting an inference that petitioner and not Pointer was largely responsible for the property damage. RT at 444-45. In addition, Pointer stated that the photos accurately reflected the damage to the house. RT at 337. Thus, it was permissible for the jury to infer that petitioner caused the damage revealed in the photographs. Jammal, 926 F2d at 919-20.

Furthermore, Pointer recanted her earlier statements to police and to her neighbor that petitioner was responsible for the damage, and claimed at trial that she caused some of the damage shown in the photographs (RT at 315-16). As such, the jury was aware that there was some dispute over whether petitioner caused all of the damage shown in the photographs. Accordingly, admission of the photographs did not render petitioner's trial fundamentally unfair.

Finally, petitioner has failed to establish that any purported state court error had a substantial and injurious effect or influence in determining the jury's verdict. See Brecht, 507 US at 638. This claim must be denied.

G. GROUND 17

In Ground 17, petitioner alleges that he was selectively prosecuted. Specifically, petitioner maintains that the prosecutor committed constitutional error by prosecuting petitioner and not Pointer, who testified that she had also damaged property. The California Supreme Court denied this claim, which petitioner raised on state habeas, in a summary opinion.

A selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. See United States v Armstrong, 517 US 456, 463 (1996). Although the decision whether to prosecute and what charges to bring generally rests entirely in the prosecutor's discretion, this discretion is subject to constitutional constraints. See id at 464. One of these constraints is that the prosecutorial decision may not violate equal protection by resting on "'an unjustifiable standard such as race, religion, or other arbitrary classification.'" Id (citation omitted).

Courts presume that prosecutors have properly discharged their official duties. See id. In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present "'clear evidence to the contrary.'" Id (citation omitted). Unsupported allegations of selective prosecution are not enough. See United States v Davis, 36 F3d 1424, 1433 (9th Cir 1994).

A prosecutor's charging decision cannot be judicially reviewed absent a prima facie showing that it rested on an impermissible basis, such as gender, race or denial of a constitutional right. See United States v Diaz, 961 F2d 1417, 1420 (9th Cir 1992). To establish a prima facie case of selective prosecution, the claimant must show that the prosecutorial policy (1) had a discriminatory effect and (2) was motivated by a discriminatory purpose. See Armstrong, 517 US at 465.

After conducting an independent review of the record, the court concludes that the state court's decision was not objectively unreasonable under clearly established federal law. Petitioner argues that the prosecutor's decision to prosecute him and not Pointer was improper. He cannot, however, present clear evidence to rebut the strong presumption that the prosecutor's charging decision was within the constitutional parameters of prosecutorial discretion. Armstrong, 517 US at 463-64. Petitioner does not allege that the prosecutor charged him (petitioner) based on an arbitrary classification such as race or religion and he cites no cases in support of his allegation that the non-prosecution of an alleged accomplice constitutes selective prosecution; thus he fails to make the required prima facie case of selective prosecution. Id at 465.

Moreover, even though petitioner has not established a prima facie case of selective prosecution, the court notes that there were sound reasons for the prosecutor to elect to prosecute petitioner and not Pointer. The record indicates that, after responding to a call, testifying Officer Scott Payn observed petitioner throw something against the wall and tip something over inside the house. RT at 444. Pointer was not there at the time, supporting an inference that petitioner and not Pointer was largely responsible for the property damage. RT at 444-45. In addition, while Pointer claimed she was responsible for part of the damage during her testimony, in so doing she recanted her original statements to Officer Payn and to her neighbor that petitioner was responsible. RT at 315-40. Under those circumstances, it was well within the realm of permissible prosecutorial discretion for the prosecutor to prosecute petitioner and not Pointer. Petitioner's claim must be denied.

H. GROUND 18

In Ground 18, petitioner alleges that he was denied the right to testify on his own behalf at trial. The California Supreme Court denied this claim, which petitioner raised on state habeas, in a summary opinion.

The right to testify on one's behalf at a criminal trial is protected by the United States Constitution. Rock v Arkansas, 483 US 44, 51-52 (1987). It is a personal right that may be relinquished by the defendant. United States v Joelson, 7 F3d 174, 177 (9th Cir 1993). Although the ultimate decision whether to testify rests with the defendant, he is presumed to assent to his attorney's tactical decision not to have him testify. Joelson, 7 F3d at 177; United States v Edwards, 897 F2d 445, 446-47 (9th Cir 1990). The trial court has no duty to advise the defendant of his right to testify, nor is the court required to ensure that an onthe-record waiver has occurred. See id at 446. Thus, waiver of the right may be inferred from the defendant's conduct and is presumed from the defendant's failure to testify or notify the court of his desire to do so. Joelson, 7 F3d at 177; Edwards, 897 F2d at 446. A defendant who wants to reject his attorney's advice and take the stand may do so by insisting on testifying, speaking to the court or discharging his lawyer. Joelson, 7 F3d at 177. A defendant waives the right to testify if he remains silent in the face of his attorney's decision not to call him as a witness. United States v Pino-Noriega, 189 F3d 1089, 1094-1095 (9th Cir 1999); United States v Nohara, 3 F3d 1239, 1244 (9th Cir 1993).

After conducting an independent review of the record, the court concludes that the state court's decision was not objectively unreasonably under clearly established federal law. Petitioner argues that during a confidential Marsden*fn7 hearing with the trial court on October 9, 2002, he complained of a conflict of interest with his trial counsel because his trial counsel would not allow him to testify. Petition at 57. Petitioner's Marsden motion was denied. The transcript of that confidential hearing was not made available to respondent and has not been lodged with this court by either petitioner or respondent.

Petitioner does not provide any evidence in support of his claim that both his trial attorney and the trial judge prevented him from testifying. While petitioner now claims that he maintained in a closed hearing that he wanted to testify and that his attorney would not allow him to do so, he can point to no record evidence that his attorney and the trial court denied him his constitutional right to testify. In light of a silent record, this court may not assume: 1) that petitioner's trial attorney refused to allow him to testify; 2) that petitioner made an unambiguous claim at the confidential Marsden hearing that his attorney affirmatively prevented him from testifying; and 3) that the trial judge, in light of the evident constitutional implications, would have denied the motion for new counsel or denied petitioner the opportunity to testify on the record.

The applicable law confirms that a trial court has no duty to advise the defendant of his right to testify, nor is the court required to ensure that an on-the-record waiver has occurred. Edwards, 897 F2d at 446. In addition, a defendant is presumed to assent to counsel's advise not to testify. See Joelson, 7 F3d at 177. Finally, petitioner has failed to establish that any purported state court error had a substantial and injurious effect or influence in determining the jury's verdict. Brecht, 507 US at 638. A defendant who testifies on his own behalf waives his privilege against self-incrimination with respect to the relevant matters covered by his direct testimony and subjects himself to cross-examination and impeachment by the government. Brown v United States, 356 US 148, 154-55 (1958); United States v Hearst, 563 F3d 1331, 1338 (9th Cir 1977). Given that petitioner would have opened himself to arguably damaging impeachment by testifying, he cannot show that his potential testimony was likely to have changed the jury's verdict. Accordingly, petitioner's claim must be denied.

I. GROUND 22

In Ground 22, petitioner maintains that his Fourth Amendment rights were violated. Specifically, petitioner alleges that law enforcement illegally entered and searched his home. Petition at 67.

Petitioner's claim is not cognizable. Stone v Powell, 428 US 465, 481-82, 494 (1976), bars federal habeas review of Fourth Amendment claims unless the state did not provide an opportunity for full and fair litigation of those claims. The existence of a state procedure allowing an opportunity for full and fair litigation of Fourth Amendment claims, rather than a petitioner's actual use of those procedures, bars federal habeas consideration of those claims. See Gordon v Duran, 895 F2d 610, 613-614 (9th Cir 1990) (whether or not defendant litigated 4th Amendment claim in state court is irrelevant if he had opportunity to do so under California law). California state procedure provides an opportunity for full litigation of any Fourth Amendment claim. See id Accordingly, petitioner's claim is denied.

J. GROUND 23

In Ground 23, petitioner argues that his sentence for felony vandalism (twenty-seven years to life) constitutes cruel and unusual punishment in violation of the Eighth Amendment. The California Court of Appeal rejected this claim in a reasoned opinion on direct appeal.

Petitioner's sentence was attributable to his two prior "strikes" for assault with a deadly weapon, which the jury found true as both serious felony priors and prison term priors. Before addressing petitioner's Eighth Amendment claim, the California Court of Appeal noted the seriousness of petitioner's prior strikes.

Both strike priors were for assault with a deadly weapon. * * * In one, he wrapped a towel around his common-law wife's neck, stabbed her six times in the throat, and caused wounds that, though arguably superficial, nonetheless could have induced the meningitis that led to "brain damage and a coma" and ultimately to her death. In the other, after his shoulder was nicked by a piece of broken window glass a man kicked at him, he threw a metal pole at the man, striking him in the forehead above the eye and causing a wound that required 50 stitches to close. He was still on parole for that offense at the time of the vandalism. * * * As the court stated in declining to strike his strike priors, "It's basically nonstop."

Opinion at 23-24.

The state court then turned to petitioner's claim of cruel and unusual punishment.

In determining whether punishment is constitutionally excessive, the courts examine the nature of the offense and offender, the penalty the same jurisdiction imposes for other offenses, and the punishment other jurisdictions impose for the same offense. [citations omitted] A punishment that involves "unnecessary and wanton infliction of pain" or that is "grossly out of proportion to the severity of the crime" violates the Eighth Amendment. (Gregg v Georgia (1976) 427 US 153, 173.) A punishment "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity" violates * * * the California Constitution.

Wallace's punishment with a 27-to-life sentence is neither. * * * [I]n addition to his two assault with a deadly weapon strike priors, he has a 16-year history of offenses, including yet another assault with a deadly weapon, a willful infliction of corporal injury, a receiving stolen property, and a felony failure to appear. His record shows, as the court noted, "[c]onstant violations of parole, sent back time and time again." Just the year before the vandalism here, he had a domestic disturbance that ended in a trespass conviction and another violation of parole.

California statutes imposing harsher punishments on recidivists have long withstood constitutional challenge. * * * The primary goals of a recidivist statute "are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time." (Rummel v Estelle (1980) 445 US 263, 284-285.) Defining that point in one's life and setting that time are both "matters largely within the discretion of the punishing jurisdiction." (Id at p 285.)

Since recidivism and multiplicity of offenses pose a manifest danger to society, Wallace's harsh punishment neither shocks the conscience nor offends fundamental notions of human dignity. * * * In short, Wallace's sentence constitutes neither cruel or unusual punishment under the federal Constitution or cruel and unusual punishment under the state Constitution. (US Const, 8th Amend.; Cal Const, art I § 17; see Ewing v California (2003) 538 US 11; Lockyer v Andrade (2003) 538 US 63; People v Martinez, supra, 71 Cal App 4th at pp 1516-1517.)

Opinion at 24-25.

Petitioner cannot demonstrate that the California Court of Appeal's reasoned decision was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court law. Nor can he demonstrate that the state court's factual findings were unreasonable. Petitioner can cite to no clearly established law indicating that the state court decision was in error.

Rather, the state court's reasoning is in accord with the applicable law. Neither the Supreme Court nor the Ninth Circuit has held that California's three-strikes laws violate the Eighth Amendment, and the Supreme Court has upheld sentences in habeas cases involving three strikes sentences. Lockyer v Andrade, 538 US 63, 68 (2003); Ewing v California, 538 US 11, 19-20 (2003). Indeed, in Andrade, the Supreme Court upheld the sentence of a California petitioner who was convicted on two counts of petty theft and sentenced to life in prison under the three strikes law, concluding it was not one of the "exceedingly rare" and "extreme" punishments that violates the Eighth Amendment. 538 US at 73.

While the Eighth Amendment forbids sentences that are grossly disproportionate to the crime, a criminal defendant's history of recidivism is an important factor of the proportionality equation. Ewing, 538 US at 29 (confirming importance of a petitioner's "long history of felony recidivism" in an Eighth Amendment analysis). "[T]he presence of violence on a petitioner's record seems an extremely important focal point for proportionality review." Taylor v Lewis, 460 F3d 1093, 1100 (9th Cir 2006).

In this case, given the applicable law, petitioner's record and the violent nature of his prior strikes, the state court's conclusion that "Wallace's harsh punishment neither shocks the conscience nor offends fundamental notions of human dignity" was not unreasonable. Accordingly, petitioner can show no Eighth Amendment violation and his claim must be denied.

K. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

In Grounds 1, 4, 5, 6, 7, 12, 13, 19, and 21, petitioner maintains he was denied effective assistance of trial counsel in violation of the Sixth Amendment. In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i e, that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v Washington, 466 US 668, 687-88 (1984). This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. See id at 687. The relevant inquiry is not what defense counsel could have done, but rather whether the choices defense counsel made were reasonable. See Babbitt v Calderon, 151 F3d 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 US at 688; Sanders v Ratelle, 21 F3rd 1446, 1456 (9th Cir 1994). It is unnecessary for a federal court considering a habeas ineffective assistance claim to address the prejudice prong of the Strickland test if petitioner cannot establish incompetence under the first prong. Siripongs v Calderon, 1333 F3d 732, 737 (9th Cir 1998).

Second, the petitioner must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. See Strickland, 466 US at 688. The test for prejudice is not outcome-determinative; thus, the petitioner 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 also is not sufficient. See id at 693. 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. See id at 694.

A defendant can make out a claim of ineffective assistance of counsel only by pointing to specific errors made by trial counsel. See United States v Cronic, 466 US 648, 646 (1984); Ortiz v Stewart, 149 F3d 923, 933 (9th Cir 1998) (inexperience alone does not establish ineffectiveness); Smith v Ylst, 826 F2d 872, 875 (9th Cir 1987); United States v Mouzin, 785 F2d 682, 696-700 (9th Cir 1986) (disbarrment without more does not render services of counsel ineffective). Counsel's conduct must be evaluated for purposes of the performance standard of Strickland "as of the time of counsel's conduct." Lowry v Lewis, 21 F3d 344, 346 (9th Cir 1994) (citations omitted).

A difference of opinion as to trial tactics does not constitute denial of effective assistance, United States v Mayo, 646 F2d 369, 375 (9th Cir 1981), and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. Bashor v Risley, 730 F2d 1228, 1241 (9th Cir 1984); United States v Ferreira-Alameda, 815 F2d 1251 (9th Cir 1987). Tactical decisions of trial counsel deserve deference when: (1) counsel in fact bases trial conduct on strategic considerations; (2) counsel makes an informed decision based upon investigation; and (3) the decision appears reasonable under the circumstances. Sanders, 21 F3d at 1456.

Petitioner has the burden of showing that counsel's performance was deficient. Toomey v Bunnell, 898 F2d 741, 743 (9th Cir 1990). Similarly, he must "affirmatively prove prejudice." Strickland, 466 US at 693. Conclusory allegations that counsel was ineffective do not warrant relief. Jones v Gomez, 66 F3d 199, 205 (9th Cir 1995).

1. GROUND 1 (Kahanic Instructions)

In Ground 1, petitioner maintains that his attorney's conduct was constitutionally ineffective when she failed to object to the prosecution's proposed instruction based on People v Kahanic, 196 Cal App 3d 461. The state court denied this claim in a summary opinion.

Even if petitioner were able to show that his counsel's lack of objection was deficient performance, he would not be able to demonstrate prejudice. As discussed in detail supra, with regards to Grounds 8 and 9, the California Court of Appeal found Kahanic to be applicable law in petitioner's case. Opinion at 4-8.

Accordingly, there is no reasonable probability that, had petitioner's counsel objected to the instruction, the result of his trial would have been different. Strickland, 466 US at 693-694. Petitioner's claim must be denied.

2. GROUNDS 4 and 5*fn8

In Grounds 4 and 5, petitioner maintains that his counsel was constitutionally ineffective when she failed to object to the testimony of an expert that petitioner claims was unqualified. The expert in question was a licensed contractor who testified as to damages. The California Court of Appeal addressed this issue in a reasoned opinion on direct appeal.

Wallace argues his attorney's failure to object to qualification of the licensed contractor as an expert and to his expert testimony on damages as "inexpert," "irrelevant," and "wrong" constitutes ineffective assistance of counsel. Specifically, he argues the "only qualification" of the expert was that of a "'general contractor in the building industry.'" To the contrary, the record shows the expert performed "appraisals or estimates for insurance purposes," all on the basis of "industry standards for insurance work and insurance repair," some on the basis of photographs alone, as a routine part of his business. On the authority of case law holding that the measure of damages for theft is fair market value, he argues the expert's testimony about a different measure of damages for vandalism was irrelevant. (See People v Simpson (1938) 26 Cal App 2d 223.) Property damaged by vandalism is often repairable, but property lost to theft is not, so positing fair market value as the only measure of damages for the home is nonsensical. Instead, as the expert testified here, positing "construction, such as finished carpentry, painting, [and] drywall repair," as the measure of damages for the home is reasonable. A witness can testify as an expert if special knowledge, skill, experience, training, or education qualifies him or her as an expert on the subject. (Evid Code, § 720, subds (a), (b).) Expert testimony is admissible if the subject is sufficiently beyond common experience to assist the trier of fact. (See Evid Code, § 801, subds (a), (b).) Here, as qualification of the expert and admission of his testimony are within the court's "considerable latitude," there is no showing of the "'manifest abuse of discretion'" necessary to disturb the court's ruling on appeal. (People v Davenport (1995) 11 Cal 4th 1171, 1207). * * * On that record, Wallace fails to meet his burden of showing his attorney's performance "fell below an objective standard or reasonableness" and prejudiced his defense. (Strickland v Washington (1984) 466 US 668, 687, 688; People v Ledesma (1987) 43 Cal 3d 171, 216-217.)

Opinion at 19-20.

Petitioner cannot demonstrate that the California Court of Appeal's reasoned decision was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court law. Nor can he demonstrate that the state court's factual findings were unreasonable. Petitioner can cite to no clearly established federal law indicating that the state court decision was in error.

As the state court confirmed, the damages expert was qualified to testify under the applicable law. Thus, petitioner's attorney had no reasonable grounds to object to his testimony. Even had she objected, her objection was likely to have been overruled. Because there is no reasonable probability that, had petitioner's counsel objected to the expert, the result of petitioner's trial would have been different, Strickland, 466 US at 693-94, petitioner's claim must be denied.

3. GROUNDS 4 and 6 (Knock-Notice Rule)

In Grounds 4 and 6, petitioner maintains that his counsel was ineffective because the arresting officers did not comply with the knock-notice rule, and his attorney did not seek to suppress any evidence on that ground. The Court of Appeal addressed this claim in a reasoned argument on direct appeal.

[O]n a record of no evidence of compliance with the knock-notice rule and in reliance on Duke v Superior Court (1969) 1 Cal 3d 314, [Wallace] argues that his attorney's failure to suppress evidence constitutes ineffective assistance of counsel. Duke is inapposite since the officers in that case "did not comply with the requirements of section 844 and did not possess any excuse for failing to comply with that section." * * * Here, since compliance with the knock-notice rule would have increased the officers' peril, the statute excused them from compliance. On that record, a motion to suppress evidence on the basis of non-compliance would have been futile. As the law neither does nor requires idle acts, so an attorney has no duty to make a futile request.

Opinion at 19.

Petitioner cannot demonstrate that the California Court of Appeal's reasoned decision was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court law. Nor can he demonstrate that the state court's factual findings were unreasonable. Petitioner can cite to no clearly established federal law indicating that the state court decision was in error.

Strickland and its progeny do not require that trial counsel make futile motions, and thus, the decision of petitioner's counsel not to file a motion to suppress was reasonable under the circumstances. See Sanders, 21 F3rd at 1456 (9th Cir 1994). Furthermore, petitioner cannot demonstrate that he suffered any prejudice due to his counsel's failure to file a motion to suppress. Given that it would have been futile for petitioner's counsel to bring a suppression motion, there is no reasonable probability that, had the motion been brought, the result of the proceeding would have different. Strickland, 466 US at 693-94. Accordingly, petitioner's claim must be denied.

4. GROUND 4 (Irrelevant Evidence)

In Ground 4, petitioner also maintains that his counsel was ineffective when she did not object to evidence of the new replacement value of vandalized items. According to petitioner, this evidence was irrelevant because damage to used property was at issue. Petition at 30. The California Court of Appeal dismissed this subclaim in a reasoned opinion on direct appeal.

On the authority of caselaw holding that the measure of damages for theft is fair market value, [petitioner] argues that the expert's testimony about a different measure of damages for vandalism was irrelevant. * * * Property damaged by vandalism is often repairable, but property lost to theft often is not, so positing fair market value as the only measure of damages for the home is nonsensical.

Opinion at 19.

Petitioner cannot demonstrate that the California Court of Appeal's reasoned decision was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court law. Nor can he demonstrate that the state court's factual findings were unreasonable. The state court determined that the evidence was relevant; as such, petitioner's counsel had no grounds for objecting to it as irrelevant. Furthermore, petitioner cannot demonstrate that he suffered any prejudice due to his counsel's failure to object to the evidence on relevancy grounds. Given that the evidence was relevant, there is no reasonable probability that, had counsel objected, the result of the proceeding would have different. See Strickland, 466 US at 693-94. Accordingly, petitioner's claim must be denied.

5. GROUNDS 4 and 7 (Attorney Advisement)

In Grounds 4 and 7, petitioner claims that his attorney did not properly advise him on the monetary threshold for felony vandalism, causing him to reject a favorable plea bargain from the prosecution. According to petitioner, his attorney's conduct was ineffective assistance. This claim was partially addressed in a reasoned opinion on direct appeal as follows.

Wallace argues that his attorney's failure to advise him of the $400 threshold for felony vandalism constitutes ineffective assistance of counsel. A copy of CALJIC 16.320 with a handwritten note -- "This is my hope" -- is in the confidential probation officer's file, but nothing identifies the author of the note. (CALJIC No. 16.320 (6th ed 1996) pp 486-487.) The instruction incorretly states vandalism is a misdemeanor if the amount of defacement, damage, or destruction is "over $400" (CALJIC No 16.320 * * * italics added), and the Use Note differently, but equally incorrectly, states "[o]nly injury or destruction less than $5000 is a misdemeanor" (* * * italics added), but the statute states vandalism is a misdemeanor if the amount of defacement, damage, or destruction is less than $400 (§ 594, subd (B)(2)(A), italics added). Together, the instruction and the Use Note contradict the statute, defy common sense, and confirm the adage: A camel is a horse designed by a committee.

The CALJIC Committee's calamitous misadventure with CALJIC No 16.320 raises questions here about who knew what when. At the hearing on his new trial motion, Wallace testified he asked his attorney why she was not "trying [to] debate this estimate under [$]5,000" if "under $5,000 can be designated constituted [sic] as a misdemeanor." He testified that she gave him an instruction showing he was "only going to face a misdemeanor" and that he asked, "Why would I accept six years if this was a misdemeanor[?}" He testified, "I was just totally mislead [sic] by the jury instruction and the notion that this is how the law is supposed to work." His attorney testified that she had never given him a copy of CALJIC No 16.320 and never advised him to reject his six-year offer.

In declarations on the motion, Wallace and his attorney both state she told him the court was going to instruct with CALJIC No 16.320. He stated he would have taken a plea bargain if he had known the jury was not going to receive that instruction. He stated she told him the jury was required to return a misdemeanor verdict. She testified she never told him that. She stated in her declaration that she gave him "the attached copy of said jury instruction," but no instruction was attached. At the hearing, the court marked as CALJIC No 16.320 an instruction she testified was a product of his research, not hers, but the instruction never went into evidence and is not in the record, which sheds no light on whether the instruction is the same as, or different from, the one with the handwritten note in the confidential probation officer's file.

On a record so confusing, incomplete, and inconsistent, Wallace fails to show ineffective assistance of counsel on appeal. * * * An ineffective assistance of counsel argument often is more appropriate on habeas corpus than on appeal. (See People v Mendoza Tello (1997) 15 Cal 4th 264, 266-267.) As that is so here, we reject his argument but intimate no opinion on the merits.

Opinion at 21-22.

On his initial habeas corpus review, petitioner's claim of ineffective assistance of counsel was addressed by the Fresno County superior court as follows.

Petitioner contends that the judgment in the underlying case was the result of ineffective assistance of counsel and prosecution misconduct. He further asserts that these issues could not be resolved on appeal because they involve matters outside the court record. The Opinion issued by the Fifth Appellate District on October 19, when it affirmed the modified judgment in this case, noted that ineffective assistance of counsel arguments are often more appropriate on habeas corpus than on appeal. * * * However many of petitioner's current contentions are based on issues found in the court record; and his fundamental legal arguments are inconsistent with the holdings of the Court of Appeal. Furthermore, petitioner's own documentation does not support his claim of prejudicial misconduct. To the contrary, the objective evidence undermines his allegations.

Lodged Document 6. The Superior Court denied the petition for writ of habeas corpus; the California Court of Appeal and California Supreme Court subsequently summarily denied this claim.

This court has conducted an independent review of the record, and in addition to the facts noted by the state court on direct appeal, critical facts regarding this claim are detailed in the transcript for petitioner's motion for a new trial after his conviction. Petitioner himself testified that his trial counsel gave him the jury instruction stating that the vandalism was a misdemeanor and that because of that, he did not take the plea bargain of six years. RT at 1036. Petitioner also testified, however, that there was "no secret I was looking at three strikes" and that he knew he was facing a 25 years to life prison sentence. RT at 1042-43. At the same hearing, petitioner's trial counsel, Carrie McCreary, testified that she did not tell petitioner that he would be convicted of a misdemeanor and did not provide him with a copy of CAL-JIC 16.320. RT at 1021-22. McCreary stated she provided petitioner with case law regarding a special jury instruction regarding consent that she later provided the court. RT at 1022.

McCreary also testified that she conveyed the offer of a six year sentence in exchange for a guilty plea to petitioner. She stated that she did not advise petitioner not to take the offer but rather: explained to him a route that we could go if he did not want to accept the six years. All along he told me that he did not want to accept any time for this crime, given the fact that the parties involved were mutually destroying property, and they owned property together.

And I tried to explain to him that that was not a defense, but that there was this case that said consent could be a defense and that I would request a special jury instruction.

RT at 1023. McCreary also testified that she never told petitioner the maximum sentence was one year or that the maximum conviction he could receive was a misdemeanor; she did tell him that the case was a three strikes case that could mean a sentence of 25 years to life in prison. RT at 1024. In denying the motion for a new trial, the trial court judge stated on the record that as to credibility, he believed McCreary's testimony, and noted that even if McCreary had given petitioner the incorrect jury instruction, petitioner had stated that he did not discuss the jury instruction with her. RT at 1045, 1041.

Petitioner cannot demonstrate that his attorney's conduct constituted ineffective assistance of counsel. To begin with, petitioner can cite to no cases indicating that his attorney's conduct fell below an objective standard of reasonableness. See Strickland, 466 US at 687-88. Petitioner argues that his counsel mistakenly told him that he could be convicted of a misdemeanor, causing him to reject the plea deal. The record, however, does not support petitioner's allegations. Petitioner's attorney denied that she had given him the faulty instruction and, as the trial court judge stated, even if she had, petitioner himself stated that he did not discuss the instructions with her. RT at 1045. Moreover, petitioner himself testified that he knew his case was a three strikes case, and that he was facing 25 years to life in prison. Given that petitioner stated he knew he was facing 25 years to life in prison, he cannot also claim that he believed he was facing only a misdemeanor conviction and a sentence of less than six years.

Nor can petitioner demonstrate that the result of the proceedings would have been different absent counsel's alleged errors. See Strickland, 466 US at 693-694. Petitioner asserts that he would have taken the plea bargain of six years had he known he was not facing a misdemeanor conviction. This assertion, however, is belied by petitioner's own testimony that he knew he was facing 25 years to life in prison if he were convicted. Moreover, McCreary testified that petitioner rejected the plea deal because he did not want to agree to any time in prison. RT at 1023. The trial court found that McCreary was more credible than petitioner, and the trial court's factual determinations are entitled to a presumption of correctness. 28 USC § 2254(e). As such, and given that a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, petitioner's claim must be denied. Strickland, 466 US at 688; Sanders, 21 F3d at 1456.

6. GROUND 4 (Instructions)

In Ground 4, petitioner also alleges that his counsel was ineffective for failing to request accomplice instructions, instructions on the measure of damages to property, and instructions on the criminal conduct of witnesses. The California Court of Appeal addressed each part of this subclaim on a reasoned opinion on direct appeal.

Wallace argues his attorney's failure to request instructions on the measure of damages for vandalism, on accomplices, and on past criminal conduct constitutes ineffective assistance of counsel. With case law, statutory law, and instructions from the CALJIC and the Task Force alike all silent on the measures of damages, his attorney's failure to request instruction on that topic hardly fell below an objective standard of reasonableness. * * * Assuming arguendo the court erred by not giving accomplice instructions sua sponte, his attorney's failure to request instruction on that topic did not prejudice him since a more favorable result was not reasonably probable even if the court had so instructed. * * * Likewise, assuming arguendo the court erred by failing to instruct on "[p]ast criminal conduct of a witness amounting to a misdemeanor," his attorney's failure to request instruction on that topic did not prejudice him since a more favorable result was not reasonably probable even if the court had so instructed. * * * On none of these theories does he meet his burden of showing ineffective assistance of counsel. (Strickland v Washington, supra, 466 US at pp 687-688; People v Ledesma, supra, 43 Cal 3d at pp 216-217.) Opinion at 20-21.

Petitioner cannot demonstrate that the California Court of Appeal's reasoned decision was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court law. Nor can he demonstrate that the state court's factual findings were unreasonable. Petitioner can cite to no cases indicating that his attorney's conduct fell below an objective standard of reasonableness. Strickland, 466 US at 687-88. Nor can he cite to any cases indicating that, had his counsel requested the various instructions, the result of the proceeding would have different. Strickland, 466 US at 693-94. Accordingly, and given that a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, petitioner's claim must be denied. Strickland, 466 US at 688; Sanders, 21 F3d at 1456.

7. GROUND 12 (Alibi Defense)

In Claim 12, petitioner maintains that his counsel was ineffective because she did not prepare and present an alibi defense. This claim was rejected by the state court in a summary opinion.

The court has conducted an independent review of the record and finds that the state court's summary dismissal of this claim was not objectively unreasonable under clearly established federal law. See Delgado, 233 F3d at 982. The record reveals that it was not objectively unreasonable for the state court to conclude that counsel's decision not to present an alibi defense was a reasonable tactical decision under the circumstances of the case. Sanders, 21 F3d at 1456.

At trial, arresting officer Scott Payn testified that he took Pointer's statement that petitioner had damaged the premises. He also testified that he observed the damage in the house at that time. RT at 439-42. Officer Payn later returned to the premises with three other officers. RT at 443. At that time, Officer Payn heard "lots of banging noises coming from inside the house" and observed petitioner through the front window. RT at 443. Payn observed petitioner throw something against the wall and tip something over inside the house. RT at 444. The officers continued to hear banging noises from inside the house, until Pointer arrived and gave the officers her keys to the house. RT at 444-45. The officers entered the home to arrest petitioner, and Officer Payn testified that "[t]here was a lot more damage" than there had been the first time he had visited the premises. RT at 447.

Given Officer Payn's testimony regarding observation of petitioner and the damage to the home, and the undisputed fact that petitioner was arrested at the home where the vandalism occurred, counsel's decision not to present an alibi defense was a reasonable tactical decision. Petitioner may disagree, but a difference of opinion as to trial tactics does not constitute denial of effective assistance. Mayo, 646 F2d at 375.

Moreover, even if petitioner had been able to show that counsel's decision was unreasonable, he would not be able to demonstrate any prejudice. Any alibi defense presented would have been week in light of the evidence presented by the prosecution, and there is no "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 US at 694. Accordingly, petitioner's claim must be denied.

8. GROUND 13 (Conflict of Interest)

In Ground 13, petitioner maintains that his rights were violated due to his attorney's alleged conflict of interest. In support of this claim, petitioner cites to, inter alia, counsel's limited visitation of petitioner, counsel's alleged defective defense, and counsel's alleged failure to investigate petitioner's alibi. This claim was rejected by the state court in a summary opinion.

In order to establish a violation of the Sixth Amendment, a petitioner "must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." See Cuyler v Sullivan, 446 US 335, 348 (1980) (footnote omitted). An "actual conflict" is not separate from an "adverse effect;" rather, it is defined as one which adversely affects the lawyer's performance. Earp v Ornoski, 431 F3d 1158, 1183 (9th Cir 2005).

An "actual conflict of interest" only occurs when counsel "actively represented conflicting interests." Strickland, 466 US at 692. A theoretical or potential conflict is insufficient to constitute actual conflict; instead counsel must have actively represented conflicting interests. Bragg v Galaza, 242 F3d 1082, 1087 (9th Cir), amended, 253 F3d 1150 (9th Cir 2001). The term "actual conflict" is not a synonym for "direct conflict." United States v Rodrigues, 347 F3d 818, 823-24 (9th Cir 2003). A petitioner must prove an actual conflict through a factual showing in the record. Bragg, 242 F3d at 1087; Morris, 966 F2d at 455.

The court has conducted an independent review of the record and finds that the state court's summary dismissal of this claim was not objectively unreasonable under clearly established federal law. Delgado, 233 F3d at 982. While petitioner recounts his counsel's alleged deficient performance, he does not allege that her representation of him was actually conflicted, i e that she "actively represented conflicting interests." Petitioner does not meet his burden of proving an actual conflict through a factual showing in the record. See Bragg, 242 F3d at 1087. Accordingly, his claim must be denied.

9. GROUND 19 (1987 Prior Conviction)

In Ground 19, petitioner maintains that his trial counsel was constitutionally ineffective when she allegedly failed to investigate petitioner's 1987 prior strike for assault with a deadly weapon. According to petitioner, his assault with a deadly weapon conviction should not have qualified as a strike because the conviction was pursuant to a plea bargain and was not a "serious or violent felony" under the applicable California law. The state court dismissed this claim in a summary opinion.

The court has conducted an independent review of the record and finds that the state court's summary dismissal of petitioner's claim was not objectively unreasonable under clearly established federal law. See Delgado, 233 F3d at 982. Petitioner can cite to no cases indicating that his attorney's conduct fell below an objective standard of reasonableness. See Strickland, 466 US at 687-88. The fact that petitioner's conviction for assault with a deadly weapon was pursuant to a plea bargain has no impact as to whether it was a valid conviction, and petitioner cites to no caselaw indicating otherwise. Moreover, assault with a deadly weapon was included by the California legislature as a "serious or violent felony" constituting a "strike" beginning in 2000, well before petitioner's 2002 conviction for vandalism or his 2003 sentencing. See Cal Penal Code § 1192.7. As such, there were no reasonable grounds for petitioner's trial counsel to further investigate this prior strike.

Even if petitioner's trial counsel had been ineffective when she allegedly failed to further investigate petitioner's conviction, petitioner is unable to demonstrate any prejudice as a result of her conduct. Because the conviction was a valid strike, there is no "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 US at 694. Accordingly, petitioner's claim must be denied.

10. GROUND 20 (Appellate Counsel)

In Ground 20, petitioner alleges that his appellate counsel was constitutionally ineffective. Specifically, he maintains that it was prejudicial error for his appellate counsel not to challenge petitioner's 1987 strike for assault with a deadly weapon. The state court dismissed this claim in a summary opinion.

The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. See Evitts v Lucey, 469 US 387, 391-405 (1985).*fn9 There is no constitutional right to an attorney in any other state post-conviction proceedings. See, e g, Coleman v Thompson, 501 US 722, 755-57 (1991) (no right to counsel on appeal from state habeas trial court judgment). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v Washington, 466 US 668 (1984). Miller v Keeney, 882 F2d 1428, 1433 (9th Cir 1989).

Appellate counsel does not have a constitutional duty to raise every non-frivolous issue requested by defendant. See Jones v Barnes, 463 US 745, 751-54 (1983); Miller, 882 F2d at 1434 n10. The weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. See id at 1434. Appellate counsel therefore will frequently remain above an objective standard of competence and have caused his client no prejudice for the same reason -- because he declined to raise a weak issue. Id Because appellate counsel is required to exercise judgment in addressing issues on appeal, it is "difficult to demonstrate that [appellate] counsel was incompetent under Strickland for omitting a particular argument." Smith v Robbins, 528 US 259, 288 (2000).

The court has conducted an independent review of the record and finds that the state court's summary dismissal of petitioner's claim of ineffective assistance of appellate counsel was not objectively unreasonable under clearly established federal law. See Delgado, 233 F3d at 982. Under Smith, petitioner is obligated to demonstrate that "a particular non-frivolous issue was clearly stronger than issues that counsel did present." 528 US at 288. As discussed supra with regards to claim 19, prior to petitioner's vandalism conviction in 2002, assault with a deadly weapon was defined in the relevant statutes as a serious felony. Petitioner's assault conviction, therefore, was a valid "strike" under California law at the time of his sentencing in 2003 and it was not unreasonable for his counsel not to have raised this issue on appeal. Because the strike was valid, petitioner also cannot demonstrate any prejudice based on his counsel's failure to raise this argument. Petitioner's claim must be denied.

11. GROUND 21 (Diminished Capacity)

In Ground 21, petitioner contends that his trial counsel was ineffective because she failed to investigate a defense of diminished capacity. Petitioner claims that his voluntary ingestion of rock cocaine may have diminished his ability to form the requisite criminal intent. This claim was rejected by the state court in a summary opinion.

Petitioner cannot demonstrate that the state court's rejection of this claim was objectively unreasonable under clearly established federal law. As respondent confirms, under California law, diminished capacity is not a defense to a general intent crime. People v Saille, 54 Cal 3d 1103, 1112 (1991). "Evidence of voluntary intoxication is not admissible to negate the capacity to form any mental state, but is admissible 'solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.'" Id (citing Cal Penal Code § 22). Petitioner's convictions were for vandalism and being under the influence of a controlled substance, both general intent crimes where voluntary intoxication is not a defense. Id Because there was no defense of voluntary intoxication to the alleged crimes, it was reasonable for petitioner's counsel not to raise such a defense, and petitioner suffered no prejudice as the result. Strickland, 466 US at 687-88. This claim must be denied.

L. GROUND 3

In Ground 3, petitioner maintains that he is entitled to habeas relief based on the cumulative effect of the alleged state court errors. This claim was rejected by the California Supreme Court in a summary opinion.

In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that his conviction must be overturned. See, e g, Alcala v Woodford, 334 F3d 862, 893-95 (9th Cir 2003) (reversing conviction where multiple constitutional errors hindered defendant's efforts to challenge every important element of proof offered by prosecution). However, where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation. See Mancuso v Olivarez, 292 F3d 939, 957 (9th Cir 2002).

Here, petitioner has not demonstrated that there were multiple constitutional errors such that his due process rights were violated. Petitioner may disagree with the decisions of the state courts, but he has not shown that they were unreasonable under clearly established federal law. Accordingly, his claim of cumulative error must be denied.

V.

For the reasons set forth above, the petition for a writ of habeas corpus is DENIED. The clerk shall enter judgment in favor of respondent and close the file.

IT IS SO ORDERED.


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