FINDINGS AND RECOMMENDATIONS
Petitioner William Roach is a state prisoner proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254.*fn1 Petitioner stands convicted of recklessly driving under the influence, hit and run, and various other offenses. In the pending petition, he challenges the constitutionality of those convictions. Petitioner makes several claims of prosecutorial misconduct and further alleges that he received ineffective assistance of counsel prior to and during trial and at his motion for a new trial.
As set forth in the unpublished opinion of the California Court of Appeal, Third District, the following evidence was adduced at petitioner's trial:
On the morning of February 2, 2002, Hamayak Simon Rostami was working as a cab driver, waiting for his next fare outside the Sacramento International Airport. As defendant got in the cab, Rostami placed his bag in the trunk. During the cab ride, defendant asked Rostami if he was a "highjacker" [sic] and an "Arab." Rostami noted the smell of alcohol in his cab. Eventually they reached defendant's apartment complex. The fare was $42. Rostami removed the bag from the trunk and handed it to defendant. Defendant refused to pay and asked Rostami whether he wanted $42 or a punch in the face.
Defendant walked away towards his apartment. Rostami followed him on foot about 50 feet behind. Defendant began throwing cobblestones toward Rostami. Dennis Rosos, a resident of the complex, observed the defendant shouting profanities and throwing cobblestones at the cab driver. Rostami asked Rosos to call 9-1-1. Defendant quickly walked away and disappeared behind some buildings.
Rosos was still on the phone with 9-1-1 when he turned and saw defendant leave the parking lot in a white van. Defendant ran a red light, speeding down the street towards a 7-Eleven. Rosos followed defendant in his car into the 7-Eleven parking lot.
J. James Alarcon was using the pay phone in front of the 7-Eleven store that morning. Alarcon made eye contact with defendant as defendant pulled into the parking lot. Defendant smiled at Alarcon, accelerated over a parking barrier and a handicapped blocker, and hit Alarcon, pinning him against a wall. Alarcon felt like his leg had been ripped off. He recalled, "[E]ven when [defendant] had me against the wall he was still smiling." Witnesses tried to stop defendant from leaving the parking lot by yelling, banging on the window and opening the van door, but to no avail. Defendant backed up, drove out of the lot, and returned to his apartment complex. Rosos followed.
Sacramento City Police Officer Janine LaRose responded to two different dispatches concerning an assault with a deadly weapon and a hit and run. When LaRose came into contact with defendant, he was staggering, smelled of alcohol and was difficult to understand. Rostami and other witnesses identified defendant. Defendant refused to take a chemical blood alcohol test. A forced blood draw was administered, revealing that defendant had a blood alcohol content of .30.
Alarcon suffered a severe crush injury to his right leg. His doctor subsequently diagnosed the injury as permanent.
(C043574 opinion on rehearing*fn2 at 3-4.) Petitioner was convicted of recklessly driving under the influence and causing bodily injury (two counts), assault with a deadly weapon, hit and run causing serious and permanent injury, and simple assault. The jury also found true allegations that he had a prior conviction for which he served a prison sentence and that he personally inflicted great bodily harm on the assault with a deadly weapon charge. A sentence of seven years, eight months in state prison was imposed.
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
The "contrary to" and "unreasonable application" clauses of §2254(d)(1) are different. Under the "contrary to" clause of §2254(d)(1), a federal habeas court may grant the writ only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. As the Third Circuit has explained, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3rd Cir. 1999) (emphasis in original). It is not required that the state court cite the specific controlling test or Supreme Court authority, so long as neither the reasoning nor the result contradict same. Early v. Packer, 537 U.S. 3, 8-9 (2002).
The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle but unreasonably applies it to the facts of the particular case. Williams, 529 U.S. at 410. The focus of this inquiry is whether the state court's application of clearly established federal law is objectively unreasonable. Id. "[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.
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). A court may deny a petition for writ of habeas corpus on the ground that relief is precluded by 28 U.S.C. §2254(d) without addressing the merits of the claim. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
The petition sets forth six distinct grounds for relief. Petitioner contends that (A) the prosecutor suppressed exculpatory evidence prior to the preliminary hearing; (B) the prosecutor committed prejudicial misconduct during petitioner's cross-examination; (C) retained attorney Miller rendered ineffective assistance of counsel prior to trial and his associate Nicholson rendered ineffective assistance of counsel at trial; (D) attorney Miller abandoned petitioner; (E) court appointed attorney Daly provided ineffective assistance of counsel at petitioner's motion for a new trial; and (F) the convictions were obtained by the prosecutor's use of false testimony by victim Alarcon.
A. Suppression of Evidence Prior to the Preliminary Hearing
In Brady v. Maryland, the United States Supreme Court held that the suppression before trial of requested evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. 83 (1963). The Brady duty to disclose applies to exculpatory evidence as well as evidence that could be used to impeach the government's witnesses. United States v. Bagley, 473 U.S. 667, 676 (1985).
For his first ground, petitioner contends that the prosecution suppressed evidence prior to the preliminary hearing. In particular, petitioner refers to a report taken at the scene by a Sacramento Fire EMT responder and a physician's emergency room report from Alarcon's medical records. (Pet's Ex. 4 & 5.) Petitioner asserts that these reports show that Alarcon exaggerated or lied at the preliminary hearing regarding the extent of the injuries he suffered. Petitioner also contends that Alarcon had a criminal record of which the defense was not informed and that additional criminal charges were pending against him prior to and during the trial. Petitioner argues that the suppressed evidence could have been used to impeach Alarcon's testimony at the preliminary hearing. Petitioner contends that the failure of the prosecutor to disclose this information prior to the preliminary hearing rendered the ensuing commitment order illegal.*fn3
On habeas corpus review, the Sacramento County Superior Court denied this claim, finding that petitioner had waived any issue as to errors or irregularities in the preliminary hearing by not filing a motion to dismiss. (06F02061 opinion*fn4 at 1.) The superior court also noted that petitioner failed to show that the alleged errors implicated his right to a fair trial since the documents were provided to defense counsel prior to trial. Id.
Petitioner cites no authority from the United States Supreme Court, or the Ninth Circuit, requiring that Brady material be disclosed prior to a preliminary hearing, as opposed to later in the pretrial proceedings. Although petitioner repeatedly refers to the evidence at issue as exculpatory, no actual exculpatory value is apparent from review of the documents. (Pet's Ex. 4 & 5.) If anything, the medical reports contained only impeachment information. The United States Supreme Court has specifically held that Brady does not require the disclosure of impeachment information prior to entry of a guilty plea. Ruiz, 536 U.S. 622, 629 (2002). It necessarily follows that the withholding of impeachment information prior to a preliminary hearing is also not a Brady violation. As noted by Justice Thomas, "[t]he principle supporting Brady was 'avoidance of an unfair trial to the accused.'" Ruiz, 536 U.S. at 634 (Justice Thomas, concurring). That concern is not implicated at the preliminary hearing stage.
In this case, it is undisputed that the defense received the two reports at issue before trial commenced. On the other hand, petitioner alleges that the prosecution never disclosed information that Alarcon had a criminal record or that criminal charges were then pending against him. The crux of petitioner's argument in this regard is that the prosecution had a duty to discover that its witness had a criminal history.
"When the state decides to rely on the testimony of [ ] a witness, it is the state's obligation to turn over all information bearing on that witness's credibility." Carriger v. Steward, 132 F.3d 463, 480 (9th Cir. 1997) (citing Giglio v. Unites States, 405 U.S. 150, 154 (1972)). In addition, an "individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437-38 (1995).
Some Circuit Courts of Appeal have found a duty under Brady to learn of impeachment evidence, at least with respect to key witnesses. See United States v. Perdomo, 929 F.2d 967 (3rd Cir. 1991); United States v. Auten, 632 F.2d 478 (5th Cir. 1980). In Perdomo, the Third Circuit found a Brady violation when the government failed to check the local criminal records for information concerning its key witnesses. Perdomo, 929 F.2d at 970. In Auten, the Fifth Circuit found a Brady violation when the prosecutor chose not to run a search on one of its key witnesses because of the brief time before trial. Auten, 632 F.2d at 481. In both cases, the Courts of Appeal held that the first element of a Brady violation was established because the government intentionally failed to seek out information readily available to it. On the other hand, in United States v. Young, 20 F.3d 758 (7th Cir. 1994), the Seventh Circuit found that knowledge of a witness's full criminal history is not imputed just because the prosecutor could have obtained the criminal records. Id. at 764.
In this case, there is no evidence that anyone involved in petitioner's case knew that Alarcon had criminal convictions. Petitioner is only entitled to habeas corpus relief if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Given the absence of Supreme Court precedent and the different rules set forth in the Circuit Courts of Appeal, it cannot be said that Supreme Court law clearly establishes that the prosecution was required to discover whether Alarcon had a criminal history.
In any event, petitioner's allegations regarding Alarcon's alleged criminal history are too speculative to warrant relief. Under California law, a witness may be impeached with a criminal record only in cases where the offense in question is one of "moral turpitude." People v. Wheeler, 4 Cal.4th 284, 296 (1992). Here, petitioner merely speculates that Alarcon might have had convictions for offenses relating to moral turpitude.*fn5 But factual allegations, rather than conclusions or speculation, are required. See Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970). Petitioner is not entitled to relief on his claim that the prosecution suppressed evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
B. Prosecutorial Misconduct during Cross Examination
Petitioner testified that he was taking a cab home from the airport because he had missed his flight. (RT at 353; 392.) During cross examination, the prosecutor asked petitioner, "Isn't it in fact true that you were actually thrown off the plane for being intoxicated?" (RT at 392.) The defense's objection to the question was sustained. (RT at 392.)
During a short recess outside the presence of the jury, the defense moved for a mistrial, arguing that the prosecutor had provided no witnesses or discovery regarding petitioner being thrown off a plane and that the inquiry itself was inflammatory. (RT at 393.) The prosecutor stated that she obtained the information from Rostami, who had obtained the information from his dispatch center. (RT at 394.) When court resumed, the jury was instructed to disregard the last question:
THE COURT: ...all parties are present. I must speak with you about something now, ladies and gentlemen. The last statement of the prosecutor before the objection was made, when we recessed, is stricken from the record. You must strike it from your minds, treat it as though you'd never heard it.
As I told you before, the statements of counsel are not evidence and you're not to consider them as evidence.
There's no evidence to -- with regard to the statement that was made, no evidence whatsoever before you. You must strike that statement from you minds and not let it interfere in any way with your judgment in this case.
Now, is there anyone who is unable to do that? If there's anyone who's unable to strike it from your minds and not let it interfere with your judgment in any way, is there anyone who cannot do that, please raise your hand. (No Response).
THE COURT: I see no response. Thank you. You may proceed, Ms. Becker. (RT at 397-98.)
Petitioner contends that the prosecutor's question was especially inflammatory due to the proximity in time to the one year anniversary of the events of September 11, 2001. In his second ground for relief, he contends that his rights to due process, confrontation, and a fair trial were violated.
The California Court of Appeal, Third District, applied state law to deny this claim, reasoning that even if the question was improper, it was not a pattern of egregious conduct, and did not amount to bad faith because it was intended to elicit relevant evidence as to petitioner's level of intoxication or his credibility. (C043574 opinion at 14.) In addition, the state appellate court held, the trial court's admonition and subsequent instruction to the jurors cured any potential error, thus the trial court did not abuse its discretion denying the mistrial due to the prosecutor's question. (Id. at 15).
The standard of review for a claim of prosecutorial misconduct on writ of habeas corpus is the narrow one of due process. Darden v. Wainwright, 477, U.S. 168, 181 (1986). A prosecutor's error or misconduct does not, per se, violate a petitioner's constitutional rights. See Jeffries v. Blodgett, 5 F.3d 1180, 1191 (citing Darden, 477 U.S. at 181 and Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir. 1987)). A criminal defendant's due process rights are violated only if the error or misconduct renders the trial fundamentally unfair. Darden, 477 U.S. at 181. The question to be resolved is "whether the prosecutor's remarks 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Hall v. Whitley, 935 F.2d 164, 165 (9th Cir. 1991) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Relief is limited to cases in which the petitioner can establish that the misconduct resulted in actual prejudice. Johnson v. Sublett, 63 F.3d 926, 930 (1995) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38). Put another way, prosecutorial misconduct violates due process when it has a substantial and injurious effect or influence in determining the jury's verdict. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).
In this instance, due to the overall strength of the prosecution's case, it is evident that the prosecutor's single improper question did not have a substantial and injurious effect or influence in determining the jury's verdict. There was ample evidence of guilt with respect to the charges of conviction, which included recklessly driving under the influence and causing bodily injury, assault with a deadly weapon with ...