FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 conviction on charges of murder, robbery and carjacking, and the sentence of one year plus life without the possibility of parole. Petitioner alleges he suffered ineffective assistance of trial counsel in violation of the Sixth Amendment.
On the morning of August 22, 2000, [petitioner] received a telephone call from his friend Alex Santana, who told [petitioner] he wanted to look at a Camaro he had seen.*fn2 Santana had recently purchased a Camaro, but it had transmission problems and [petitioner] suspected Santana wanted another Camaro so he could use the parts to replace the damaged transmission on his car.
[Petitioner] called a co-worker, Danny Soto, and told him he would not be going to work that day because he had to take his sick mother to Davis. [Petitioner] picked up Santana in [petitioner's] black Camaro and the two men went to breakfast.*fn3 After breakfast, [petitioner] contacted seventeen-year-old Santos and asked him to join them, saying, "[l]et's go to get a car." They picked him up at school, then picked up Camacho, and drove to the Sport Time Auto dealership. During the drive to the dealership, there was a discussion about taking a car from a dealership for a test drive, hitting the salesman on the head, throwing him out of the car, and taking the car.
When the four men arrived at the dealership, Santana and Camacho exited the car. At that time, [petitioner] noticed a gun tucked into the back of Santana's pants. [Petitioner] "had a feeling something was gonna go" because he and Santana had "discussed this" two days earlier when Santana said he wanted to get a gun and steal a Camaro off the street.
Santana and Camacho began looking at a 1996 Camaro and the victim, salesman Thomas Bucholz,*fn4 agreed to take them for a test drive in the Camaro. Camacho drove the car, Bucholz sat in the front passenger seat, and Santana sat in the back seat behind Bucholz. When they left the dealership, [petitioner] followed them in his car. Bucholz directed them to first stop at a nearby convenience store where he purchased five dollars' worth of gas. While they were waiting for Bucholz, a customer commented to Camacho that he had a nice car, but Camacho just turned his face away.
As they pulled away from the convenience store, Camacho and Santana waved at [petitioner] to follow them. Camacho drove the Camaro onto Highway 80. Shortly thereafter, Santana shot Bucholz in the back of the head, killing him, and Camacho pulled over to the side of the road where Bucholz's body was pushed out of the car.
Camacho then sped away, weaving in and out of traffic, exiting the freeway at the 16th Street exit on Highway 50 where he ran a stoplight adjacent to the 16th Street off ramp of Highway 50. A passing motorist noticed that he appeared very agitated and excited. He then drove to a parking lot at 4th and Q Streets, where he and Santana wiped the car's exterior and interior and then jumped into [petitioner's] car, which was in the parking lot. The taillight on [petitioner's] car was burnt out.
The group left the stolen Camaro in the parking lot and they drove to the waterfront at Miller Park where Santana disposed of the gun and Camacho's shirt. The foursome then went to [petitioner's] apartment where Santana and Camacho put their bloody clothes in a bag and threw it in a dumpster.
When they were at [petitioner's] apartment, Santana asked [petitioner] to take him to 4th and Q Streets so he could burn the evidence at the scene where they left the green Camaro. Around 1:00 p.m., [petitioner] drove Santana to a mini-mart to purchase a can of gasoline and then proceeded to 4th and Q Streets. However, as they approached that location, they saw police officers, so [petitioner] continued. Two blocks away, he stopped the car so Santana could get rid of the gasoline before they returned to [petitioner's] apartment.
Around 10:00 that evening, [petitioner] went to the apartment of his friend, Amber Morgan and told her he had been involved in the freeway incident that had been on the news that day. He said he wanted to tell her something but told her not to tell anyone else. He said a friend had called him that day and asked him to drive to a car dealership so he could steal a car. [Petitioner] said he was supposed to leave the friend at the dealership and meet up with him later. [Petitioner] informed Morgan his friend planned to take the car on a test drive, push the salesman out of the car, and steal the car. [Petitioner] said his friend accidentally killed the salesman.
[Petitioner] also told Morgan that when he met his friends later that day, he saw that the front of the dealership car was full of blood, and his friends asked him to help them wipe down the car. [Petitioner] told Morgan his friend had shot the salesman and pushed him out of the car. [Petitioner] also indicated that if the police contacted him he would "tell the truth and come clean" but he would not voluntarily contact the police and "rat out" his friends.
When the news came on the television advising that the police were looking for a black Camaro with a yellow sticker and a broken taillight, [petitioner] said he needed to change those things on his car. Before leaving Morgan's apartment, [petitioner] remarked that "peer pressure is a bitch."
The following day, while [petitioner] was speaking to Danny Soto on a two-way radio, [petitioner] told him he was in "deep shit" but he did not want to discuss it on the radio. [Petitioner] was arrested that evening.
[Petitioner] did not testify or present any evidence in his defense. However, his co-defendants presented evidence. Comacho testified there was no discussion or plan to steal a car, although Santana joked around about taking a car for a test drive and pushing the salesman out of the car. Camacho did not believe Santana would carry out his plan because he was a known bully, and Camacho thought he was just joking around and acting tough.
(People v. Rivera, slip op. at 2-6.)
Petitioner filed a timely appeal in the California Court of Appeal, Third Appellate District. (See Lodged Doc. A.) On September 28, 2004, the Third District Court of Appeal affirmed petitioner's conviction and sentence. (Lodged Doc. D.)
On November 8, 2004, petitioner filed a petition for review in the California Supreme Court. (Lodged Doc. E.) That petition was denied on December 15, 2004. (Lodged Doc. F.)
Petitioner filed the instant petition on December 14, 2005. (Docket No. 1.)
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
Petitioner claims that trial counsel provided ineffective assistance because he failed to (a) conduct an investigation of the only defense available, (b) locate witnesses or other evidence to support the theory that petitioner did not share intent with those who committed the carjacking and the robbery, and (c) conduct a reasonable closing argument. Petitioner provided a copy of page one of a declaration from Max Herrera, the licensed investigator retained by trial counsel to investigate petitioner's case.*fn5 (Reply, Ex. A.) Mr. Herrera states he did not conduct any type of investigation as he was not instructed to do so by trial counsel, did not bill counsel, and did not meet with counsel to review defense strategy. (Id.) Petitioner also provided declarations from Victor Reynoso, Jose Rivera (petitioner), Ukau Dungca, Theodore Santos (co-defendant), all of which were filed in state court in support of petitioner's motion for new trial. (Reply, Exs. B-E.) Finally, petitioner provided a copy of trial counsel's closing argument. (Id., Ex. F.)
Respondent argues that the state court correctly determined petitioner was not denied effective assistance of counsel.
The last reasoned rejection of this claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court rejected this claim in its review of the denial of petitioner's motion for new trial based upon his claim of ineffective assistance of trial counsel.
[Petitioner] was represented at trial by Julian Macias. On his motion for new trial, he was represented by Donald Masuda, who had represented co-defendant Santos at trial. Attached to his motion were several declarations, a letter, and a transcript of Macias' closing argument. In Masuda's declaration, he stated that he spoke to [petitioner]'s investigator who advised him he spent very little time on the case and did not contact any witnesses. [Petitioner's] declaration indicated that he never met with the investigator, he spent very little time with Macias, and Macias failed to prepare him or call him to testify. He also declared that he provided Macias with a list of character witnesses and witnesses who would have testified that Santana was known to joke around about wanting to steal cars and property, although he never followed through on any of these stated intentions. Declarations and a letter were filed by these witnesses indicating they were willing to provide character evidence on behalf of [petitioner], but Macias never contacted them.
In denying the motion, the trial court noted that much of the motion involved matters outside the record that were more appropriately addressed in a petition for habeas corpus. Although the court acknowledged it did not appear counsel "offered a spirited defense" and expressed concern about counsel's failure to give an opening statement and ask additional questions on cross-examination, the court concluded that in light of the overwhelming evidence of a plan and [petitioner's] two confessions, the court was "not sure . . . what difference [further testimony by Amber Morgan*fn6 or] the character evidence would have made . . . ." The court further noted it had instructed the juries on the issues of reckless indifference to human life and major participants, they deliberated for four days, and reached favorable implied findings for Santos and Camacho on those issues.*fn7 Thus, the juries were aware of those issues and reached a completely different verdict as to [petitioner]. The court therefore concluded it was not reasonably likely the introduction of the new evidence would have resulted in a more favorable outcome.
We agree and find, based upon the present record, the trial court did not abuse its discretion. [Citation.] It is true the record provides some support for the conclusion the case may not have been vigorously investigated. There were also several witnesses who were never contacted, but were willing to provide character evidence and evidence that Santana was a known jokester who never carried out his stated intentions. Moreover, the record does not affirmatively disclose that counsel had no rational tactical purpose for his acts and omissions. [Citation.] Nevertheless, we need not reach the question whether counsel's performance was constitutionally deficient because it is not reasonably probable the newly proffered evidence would undermine the strong evidence of [petitioner]'s guilt in view of the admissions and confessions made by [petitioner] and his co-defendants.
As the trial court found and as we have discussed [elsewhere in this opinion], there was overwhelming evidence of a plan to rob the car salesman of the Camaro so that Santana could render it for parts to repair his own car. By his own admissions, [petitioner] knew of this plan and knew Santana had a gun, but did nothing to stop him or warn Bucholz. [Petitioner] fully confessed his participation in this plan to his friend Amber Morgan and to the police. Statements by Santos and Camacho further support the conclusion [petitioner] knew Santana intended to steal a Camaro by robbing the car salesman.
Thus, the totality of the evidence renders any evidence of [petitioner's] good character virtually meaningless and belies his present assertions he did not think Santana intended to carry out his plan or that he lacked the requisite intent to knowingly facilitate the robbery. Moreover, in light of Camacho's testimony that nobody believed Santana's bluster because he was a known bully and jokester, the newly proffered evidence to that effect is merely duplicative of evidence heard and rejected by the jury under properly given instructions. Likewise, even if we assume for the sake of argument that counsel's closing argument was inadequate, the deficiency was harmless in light of [petitioner's] damning confessions.
Last and contrary to [petitioner's] assertion, the fact the jury acquitted Santos of murder and Camacho of the special circumstances does not suggest [petitioner] was prejudiced by counsel's allegedly inadequate representation. Santos, who was tried before the same jury as [petitioner], was a minor at the time of the murder. Based upon the evidence, the jury could reasonably find Santos just went along for the ride, playing a purely passive role, and therefore did not knowingly encourage or facilitate the robbery or carjacking.*fn8
Camacho, on the other hand, was tried before a different jury who heard different evidence.*fn9 Moreover, he testified that he went along with Santana's plan to rob Bucholz because Santana threatened to "blast" him if he did not cooperate. The jury could reasonably find that while Camacho aided and abetted the robbery, making him guilty of first-degree murder, he did not act with reckless indifference to human life for purposes of the special circumstances allegations. ([Cal. Pen. Code,] § 190.2, subd. (d).) For all these reasons, we reject [petitioner]'s claim of ineffective assistance of counsel.
(People v. Rivera, slip op. at 17-22.)
The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally, competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). In assessing an ineffective assistance of counsel claim "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).
Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. 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. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697).
Recently, the Court of Appeals for the Ninth Circuit clarified the application of Strickland under the AEDPA standards set forth above:
"That the standard is stated in general terms does not mean the application was reasonable. AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. Nor does AEDPA prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts different from those of the case in which the principle was announced. The statute recognizes, to the contrary, that even a general standard may be applied in an unreasonable manner." Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 2858, 168 L.Ed.2d 662 (2007) (citations and internal quotation marks omitted). Where counsel's failure to investigate was both objectively unreasonable and prejudicial, and where the state court acted unreasonably in finding to the contrary, we will grant a petition for habeas corpus.
Richter v. Hickman, ____ F.3d ____, 2009 WL 2425390 at *6 (9th Cir. 2009).
Defense counsel has a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. It has been recognized that "the adversarial process will not function normally unless the defense team has done a proper investigation." Siripongs v. Calderon (Siripongs II), 133 F.3d 732, 734 (9th Cir. 1998)(citing Kimmelman, 477 U.S. at 384). Therefore, counsel must, "at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client." Hendricks v. Calderon, 70 F.3d 1032, 1035 (9th Cir. 1995) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (internal citation and quotations omitted). On the other hand, where an attorney has consciously decided not to conduct further investigation because of reasonable tactical evaluations, his or her performance is not constitutionally deficient. See Siripongs II, 133 F.3d at 734; Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998); Hensley v. Crist, 67 F.3d 181, 185 (9th Cir. 1995). "A decision not to investigate thus 'must be directly assessed for reasonableness in all the circumstances.'" Wiggins, 539 U.S. at 533 (quoting Strickland, 466 U.S. at 691). See also Kimmelman, 477 U.S. at 385 (counsel "neither investigated, nor made a reasonable decision not to investigate"); Babbitt, 151 F.3d at 1173-74. A reviewing court must "examine the reasonableness of counsel's conduct 'as of the time of counsel's conduct.'" United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990) (quoting Strickland, 466 U.S. at 690). Furthermore, "'ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government's case.'" Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (quoting Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986)). See also Hayes v. Woodford, 301 F.3d 1054, 1070 (9th Cir. 2002). This assessment will depend in large part on a determination of whether the evidence likely would have changed the outcome of the trial. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); see, e.g., Lambert v. Blodgett, 393 F.3d 943, 983 (9th Cir.2004) (finding no prejudice from counsel's alleged failure to investigate defense of fetal alcohol syndrome where there was little chance such defense would have succeeded).
As noted above, petitioner was convicted of murder, Cal. Penal Code § 187,*fn10 robbery, Cal. Penal Code § 211,*fn11 and carjacking, Cal. Penal Code § 215. However, because petitioner was not present at the time the Camaro was carjacked and the victim was shot and thrown out of the car, the prosecution had to prove, beyond a reasonable doubt, that petitioner shared culpability with the actual perpetrators as an aider and abettor in the robbery, the carjacking, or the murder; in other words, petitioner was a principal*fn12 in one of those crimes.
Under California law, aiding and abetting is defined as follows: A person aids and abets the commission or attempted commission of a crime when he or she:
(1) With knowledge of the unlawful purpose of the perpetrator, and
(2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and
(3) By act or advice, aids, promotes, encourages or instigates the commission of the crime.
A person who aids and abets the commission or attempted commission of a crime need not be present at the scene of the crime.
Mere presence at the scene of a crime which does not itself assist the commission of the crime does not ...