The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 convictions for two counts of attempted first degree murder, two counts of kidnapping and two counts of second degree robbery. Petitioner is serving a sentence of 166 years to life.
This action is proceeding on the amended petition filed May 18, 2007, as to the following claims: 1) ineffective assistance of counsel based on counsel's failure to present several witnesses; 2) ineffective assistance of counsel based on counsel's failure to present medical records regarding petitioner's treatment for alcohol abuse; 3) ineffective assistance of counsel based on counsel's failure to present expert testimony in support of petitioner's intoxication defense; 4) ineffective assistance of counsel based on counsel's failure to object to the late notice of prosecution's expert firearms witness; 5) ineffective assistance of counsel based on counsel's failure to effectively impeach a key witness; 6) petitioner's sentence is unconstitutionally based on facts not found by a jury beyond a reasonable doubt; 7) the trial court improperly denied petitioner's motion for substitute counsel; 8) jury instruction error (2 claims); 9) cumulative error.
After carefully considering the record, the court recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue.
Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000).
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.
On the night of March 28, 2001,FN3 seventeen-year-old A.B. was at home in Vallejo with his friend D.R., who was fifteen years old. A.B. received a page and intended to walk to a pay telephone in order to return the call, as the home telephone was disconnected. As they left the house, they saw appellant Ernest Lee Vaden-an acquaintance of A.B.'s mother-outside sharing a beer. Vaden was with another man, Theodore Stith. A.B. asked if he could borrow Vaden's cell phone. Vaden agreed and led A.B. to his car where the cell phone was.
FN3. All dates refer to the 2001 calendar year unless otherwise indicated.
All four of them walked over to where Vaden's Nissan Maxima was parked and got in the car. Vaden sat in the driver's seat, Stith sat behind him, A.B. was in the front passenger seat and D.R. sat in the back seat behind A.B. Vaden said that he had an errand to run while A.B. returned his telephone call. No one objected to riding along with him. Stith asked Vaden to take him to American Canyon to see a girl.FN4 FN4. This was D.R.'s testimony. A.B. did not recall hearing Stith say this.
Once the telephone call was completed, A.B. noticed that the car was on the freeway heading out of Vallejo. Suddenly, Stith loudly accused A.B. of helping someone burglarize Vaden's home. Stith pulled out a silver semiautomatic pistol and pointed it at A.B. Vaden-although less hostile than Stith-encouraged these accusations. Vaden said "If you don't ... tell me who did it, this [is] going to turn into the shit you see on [ sic ] the movies." He seemed more upset with the person who had arranged for A.B. to burglarize his home than with A.B. A.B. knew that Vaden's house had been burglarized, but he denied being involved in the crime. The young men wanted to get out of the car, but there was no chance to do so-they were moving too fast on the freeway. On Stith's command, D.R. emptied his pockets and removed most of his clothing. Stith stated his intention to shoot A.B. Vaden drove off the freeway onto a dark country road FN5 and parked the car. Stith ordered D.R. to remove the last of his clothing. He ordered A . B. to undress, too, ripping the young man's shirt off when he thought A.B. was taking too long to comply. Naked, A.B. and D.R. squatted on the ground as they were ordered to do.
FN5. This road was later identified as Highway 12 outside of Suisun in Solano County.
Vaden continued to question A.B. about the burglary. Vaden said "Why don't you just tell us[?]" "Save me a lot of trouble." "We know you did it...." "Just ... say who sent you and we can end this." When Stith seemed to believe A.B.'s denials of involvement and wanted to call things off, Vaden refused. "[N]o, ... it's too far gone. This has to be done," he told his companion. He told Stith: "You shoot him, and then I'm going to shoot the other one." Vaden said to A.B.: "I'm gonna count to three, and then if you don't tell me, you are gonna die." Stith wrapped the barrel of the gun in D.R.'s tee-shirt and pointed it in A.B.'s face.
Vaden stood nearby in the road, acting as lookout. As Vaden FN6 counted, Stith shot A.B. in his left eye. D.R. got up and ran when he saw his friend get shot. He fell into a creek and hid in some nearby bushes. He could hear Vaden and Stith splashing in the water asking where he went. They left after a minute or two. D.R. waited another 15 or 30 minutes, then headed back toward the freeway. Naked along the freeway, he flagged down a truck driver and told him that A.B. had gotten shot. The driver called the police.
FN6. This was A.B.'s testimony. D.R. told the jury that Stith did the counting, but Vaden ordered him to do so.
Meanwhile, A.B. lay on the ground for some time, thinking only of his pain. After a while, he realized that he was alone. A.B. ran up a hill and hid in some bushes. He heard Vaden, who sounded upset, return to the area saying "We gotta find him." A.B. remained in hiding for about five minutes, at which time he saw the Nissan drive away. He walked about three-quarters of a mile down the road where he found a call box. The police located A.B. standing at a freeway call box. He was naked, muddy, very upset, bleeding from one eye, and shivering.
Vaden was arrested the following day. During a prearrest stakeout of Vaden's apartment, police observed Stith visit the apartment complex while they waited for Vaden. Vaden smelled of alcohol when he was questioned by police, who suggested that Stith might have been the shooter. Vaden denied any involvement-he told police that he had been out of the area that night and had not seen Stith. On April 2, Vaden was again interviewed by police.
In May, Vaden was charged by information with two counts each of attempted premeditated and deliberated murder, kidnapping and second degree robbery. The information also alleged that Vaden was armed with a firearm during the commission of these offenses; that he had served two prior prison terms and had suffered three prior serious felony convictions. (See §§ 187, subd. (a), 207, subd. (a), 211, 664, 667, subd. (a)(1); former §§ 667.5, subd. (a), 12022, subd. (d) .) In June, a trial date of October 3 was set.
In August, Vaden wrote to his attorney to ask that he be removed as counsel. He filed his first Marsden motion later that month, which was heard and denied on September 25. The trial date was continued to January 2002. Vaden filed a motion for reconsideration of the trial court's September denial of his Marsden motion. This time, in October, his Marsden motion was granted. A new attorney was appointed to represent Vaden. In January 2002, trial was continued until March 2002.
On March 7, 2002, Vaden's motion to set aside the information was denied. (See § 995.) His motion to bifurcate the trial of his prior convictions from that of the newly charged offenses was granted and he waived jury trial on the prior conviction allegations. His motion to exclude impeachment use of his prior convictions if he opted to testify was granted in part and denied in part.
Trial actually began in June 2002. A.B.FN7 and D.R.FN8 both testified. The jury heard the call that A.B. placed at the call box. In it, he told the dispatcher that his watch had been stolen. He never recovered his watch. A.B. told the jury that he was blind in his left eye.
FN7. He admitted that when he was a juvenile, he had been on probation for receiving stolen property and that he was currently on felony probation after being convicted of possession of cocaine for sale.
FN8. He admitted being on juvenile probation for petty theft and commercial burglary.
At trial, D.R. identified Vaden as the driver of the car FN9 and told the jury that Stith had threatened to stab and to shoot A.B. He testified that Stith hit A.B. with the gun while the men kept asking "Who did it?" Vaden pulled the car over after Stith told Vaden to do so and advised the driver to lean forward so he would not be spattered with blood when Stith shot A.B. Vaden's brother testified that he saw Vaden asleep in his car about 7:00 a.m. on the morning after the incident. Vaden smelled strongly of alcohol at that time.
FN9. In a pretrial photographic lineup, D.R. chose Vaden as the person who looked most like the driver, but was not completely certain of his identification. Vaden testified in his own defense. He told the jury that his home had been burglarized on March 23 and he asked around his neighborhood about who might have done it. He was angry about the theft of about $7,000 worth of his property. On March 27, an individual-not A.B. or D.R.-showed him some of his stolen goods, then "jumped" him, beating him up and breaking a window in his girlfriend's car. He had the car windows repaired later that day.
Vaden testified that on March 28, he had been intoxicated. He went to A.B.'s house to buy marijuana. Stith was there, too, drinking beer. He asked A.B. if he could purchase some marijuana from him. A.B. told him that his supply was running low and he needed a ride to acquire more. Vaden agreed to drive him. Stith and D.R. came along. Vaden told the jury that Stith pulled out a gun and hit A.B. with it. Stith wanted to know who had taken his drugs. His actions frightened Vaden, who was also concerned that his girlfriend's car would get blood-stained. Stith told him to keep driving and he did as he was told. He testified that Stith said to A.B., "You know you did it." When Stith told Vaden to pull over off Highway 12, he did so.
Stith threatened to kill both A.B. and D.R., but Vaden tried to stop him. They struggled over the gun and it went off. Vaden ran from Stith, who followed him, threatening to kill him, too. When the two men eventually returned to the car, Stith gave Vaden the keys and told him to drive. Stith tossed the gun and some clothing out of the car as they drove away. Vaden dropped Stith off at A.B.'s house, then continued drinking. He woke up at his brother's house. He denied threatening either of the victims or of being partnered with Stith. Stith was trying to get his drugs, not Vaden's stolen property.
Vaden admitted that he has suffered prior convictions for robbery and sale of narcotics. (See § 211; Health & Saf. Code, § 11352.) His credibility was further impeached when he admitted that he had failed to tell police that Stith had threatened him, choosing instead to lie about what happened on the night of March 28.
Respondent's Lodged Document 6, pp. 2-6.
A. Ineffective Assistance of Counsel: Failure to Call Witnesses
Petitioner alleges that counsel was ineffective for failing to investigate and prepare the testimony of Terrell McCarver, Shawn Taylor, Durrell Whitfield, Jesture Taggart, Annalisa Pearsall, two fingerprint technicians and David Perry. On October 17, 2007, petitioner filed a motion for an evidentiary hearing as to this claim. See court file doc. # 36. On August 13, 2008, the court denied this motion without prejudice. See court file doc. # 40. The court ordered that petitioner could renew his motion so long as it was accompanied by declarations from the witnesses who were to testify. Id.
On October 29, 2008, petitioner filed a renewed motion for an evidentiary hearing. See court file doc. # 44. On June 16, 2009, the court denied this motion. See court file doc. # 50. For the reasons stated in that order, the instant claim of ineffective assistance of counsel should be denied.
B. Ineffective Assistance of Counsel Claims re: Intoxication Defense Standards for Ineffective Assistance of Counsel
The test for demonstrating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. To this end, the petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690, 104 S.Ct. at 2066. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id., 104 S.Ct. at 2066. "We strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland at 466 U.S. at 689, 104 S.Ct. at 2065).
Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id., 104 S.Ct. at 2068.
In extraordinary cases, ineffective assistance of counsel claims are evaluated based on a fundamental fairness standard. Williams v. Taylor , 529 U.S. 362, 391-93, 120 S.Ct. 1495, 1512-13 (2000), (citing Lockhart v. Fretwell, 113 S.Ct. 838, 506 U.S. 364 (1993)).
The Supreme Court has recently emphasized the importance of giving deference to trial counsel's decisions, especially in the AEDPA context:
In Strickland we said that "[j]udicial scrutiny of a counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 466 U.S., at 689, 104 S.Ct. 2052. Thus, even when a court is presented with an ineffective-assistance claim not subject to § 2254(d)(1) deference, a [petitioner] must overcome the "presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its ...