FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 Sacramento County Superior Court conviction following a jury trial for premeditated attempted murder (Cal. Penal Code §§ 664/187),*fn1 home burglary (Cal. Penal Code § 459) and assault with a deadly weapon, a police night stick, with the force likely to produce great bodily injury (Cal. Penal Code § 245 (a)(1)). The jury also found the enhancement allegations that petitioner was personally armed with a deadly weapon during the commission of the crime (Cal. Penal Code § 12022(b)(1)) and personally inflicted great bodily injury under the circumstances of domestic violence (Cal. Penal Code § 12022.7(e)) to be true. As a result, petitioner was sentenced to life in prison with the possibility of parole and 15 years in state prison. (Answer at 1-2.) In his petition pending before this court petitioner collaterally attacks his conviction, raising the following grounds for relief: 1) ineffective assistance of trial counsel for failing to seek suppression of evidence and for failing to prevent the destruction of evidence;*fn2 2) jury instruction error; 3) the trial court erred by forcing petitioner to testify before other defense witnesses and 4) insufficient evidence to support attempted murder. (Petition (Pet.), filed on June 20, 2006, at 6.)*fn3
After carefully considering the record, the court recommends that the petition be denied.
PROCEDURAL AND FACTUAL BACKGROUND*fn4
Prosecution Case [Petitioner] and Robyn R. (Robyn) were married for four years and lived in Robyn's house in Sacramento. [Petitioner] often yelled at her and held her by the throat. In 1997, [petitioner] had been convicted of a federal offense; after serving his term, he violated his parole several times. During his most recent incarceration in a federal detention facility in October 2000, Robyn decided to leave him. [Petitioner] called Robyn from prison in January 2001. Robyn told [petitioner] she was ending the relationship; she was sending his clothes to his aunt and changing the locks on her doors, as well as her telephone number. [Petitioner] threatened to stalk her, and hurt or kill her. After the telephone call, Robyn attempted to get a restraining order against [petitioner]. On February 5, Robyn wrote to [petitioner] restating her intentions to leave him and change her locks and telephone number. She told [petitioner] if he contacted her she would call the police. [Petitioner] was released from prison on March 1, 2001. On the evening of March 12, 2001, Robyn and her new friend Patrick Watson fell asleep on a mattress in her living room while watching television. Some time after midnight, Robyn awoke and saw [petitioner] standing in the living room, holding a night stick. Watson recognized the night stick as a "PR-24" because he had used one during his former employment as a correctional officer. [Petitioner] began to hit Watson in the head and face with the night stick. When Robyn screamed, [petitioner] told her to "shut up, bitch," and began to hit her in the face. Robyn ran toward the door, but [petitioner] grabbed her and began hitting her in the head again. Thinking Robyn had escaped, Watson fled out the bedroom sliding door. Robyn passed out. When she awoke, she found she was alone in the house. Robyn spent six days in the hospital and had ongoing trauma.
When arrested on March 20, [petitioner] had a one-way ticket to Texas purchased on March 13 in his pocket. While being transported to the police station, he said to the deputy sheriff, among other things, "I'm going to be going away for a long time. I almost got away. I really fucked up. I ran because I was scared[ ]" and "What do you think is going to happen to me now?"
Watson saw [petitioner's] face and identified him as the assailant at trial. Robyn did not initially identify [petitioner] as the assailant. Neither she nor Watson recalled the original descriptions given to the police. [Petitioner's] Case [Petitioner] testified he was incarcerated in the Metropolitan Detention Center in February when he received the letter from Robyn. He had expected the letter, and was not upset. On March 8, one week after his parole, he informed his parole officer that he wanted to move to Texas to help his mother, who had cancer.
On March 12 and 13, the night of the attack, [petitioner] had been staying with friends, Miguel Elicia (Buck) and Gwen DuPatty.*fn5 After DuPatty left the house, a friend dropped [petitioner] off at Darcell Snowton's home about 8:00 p.m. [Petitioner] took a cab back to Elicia and DuPatty's house about 2:30 a.m. Between 9:00 and 10:00 a.m. on March 13, his sister Denise Galvan picked him up. On March 19, he received a bus ticket that had been purchased on March 13 and a money order from his mother. [Petitioner] denied ever threatening Robyn.
Snowton testified she was with defendant until about 2:00 a.m. on the night of the murder. [Petitioner]'s sister Denise confirmed [petitioner] was staying at Elicia's house. She also claimed [petitioner] was not upset by the impending divorce.
In rebuttal, Gwen DuPatty testified that [petitioner] came in between 10:00 and 12:00 p.m., but he may have been gone when she arose at 6:00 or 6:30 a.m. on March 13. (Opinion at 2-5.)
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See 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)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Claim 1 - Ineffective Assistance of Counsel
Petitioner contends that his trial counsel provided ineffective assistance by failing to seek suppression of a statement and physical evidence and for failing to preserve potentially exculpatory information in the form of a taped phone conversation. (Pet. at 12, 14.)
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. 466 U.S. 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). 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).
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, 477 U.S. at 381 (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).
Approximately a week after the attack that eventually resulted in petitioner's conviction, police units went to the apartment complex of Carol Olivas looking for petitioner.*fn6 (Reporter's Transcript (RT) at 380.) The police obtained a key and approached Olivas' apartment. (Id. at 382.) The police knocked to announce their presence but no one answered.*fn7
(Id. at 382.) They then entered the apartment without a warrant. (Id. at 383; Pet. at 12.) Olivas and her son were removed by police officers and she stated that petitioner was in the apartment. (RT at 401.) At trial, petitioner testified that on the day in question he was in bed with Olivas when he heard a loud noise. (Id. at 490.) Petitioner, fearing it was the father of Olivas' children, hastily put on his pants and went out the window, jumped over a gate and ran before being seized by a police dog. (Id. at 490-91.)
Police recovered a one-way bus ticket to Texas in petitioner's pocket and a letter from petitioner's mother acknowledging her purchase of the ticket. (RT at 372-75.) The ticket was purchased on March 13, 2001, the same day as the attack. (Id.) While in the back of a police car headed to the station, petitioner volunteered to police officers, "I'm going to be going away for a long time. I almost got away. I really fucked up. I ran because I was scared. What do you think is going to happen to me now?" (Id. at 418.) Petitioner contends that his trial counsel was ineffective for failing to move to suppress the train ticket and his statements to police. The California Court of Appeal for the Third Appellate District, rejected petitioner's argument in this regard on direct appeal, stating:
[Petitioner] argues trial counsel erred by failing to seek suppression of the items in his pockets and his post-arrest statements because the warrantless entry into the apartment was not excused by consent or exigent circumstances, and his arrest was the fruit of this poisonous tree. [Petitioner] contends he had standing as an "overnight guest" to challenge the entry.
Failure to preserve a Fourth Amendment claim for appeal will not necessarily preclude appellate review of the merits of the argument if [petitioner] asserts on appeal that his trial counsel was constitutionally ineffective for failing to preserve the argument for appeal. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1252-1254, 82 Cal.Rptr.2d 231.) There can be no prejudice from a failure to make a futile suppression motion. (Kimmelman v. Morrison (1986) 477 U.S. 365, 382 [91 L.Ed.2d 305] [defendant must show motion to suppress would have been meritorious in order to satisfy the prejudice prong of ineffective assistance of counsel standard].) We are not persuaded by [petitioner's] basic premise. He does not claim the officers lacked probable cause to arrest him. Rather, he contends the arrest was the product of an illegal entry, even though he was arrested outside the house. [Petitioner's] arrest was not the product of the entry. [Petitioner] testified he went out the apartment's bedroom window after hearing a noise because he thought a vengeful man would find him. He ran from his lover's ex-husband, not from the police.
Therefore, even assuming the entry into Carol Olivas's apartment could have violated someone's Fourth Amendment rights (although probably not [petitioner's]), his detention and arrest while running through an apartment complex were separate from the entry. The items seized from him and his volunteered statements in the police car were not the product of an illegal entry.
Moreover, "'"[t]o the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation....'"'" (People v. Hart (1999) 20 Cal.4th 546, 623-624, 85 Cal.Rptr.2d 132, 976 P.2d 683, quoting People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859, fn. omitted.) In this case, trial counsel answered the question at the Marsden motion. Trial counsel explained that, after researching the issue, he concluded a motion to suppress would be futile because defendant was arrested outside the apartment. The statement was given 45 minutes after the officers had entered the house. We agree. "It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel." (People v. Constancio (1974) 42 Cal.App.3d 533, 546, 116 Cal.Rptr. 910.) (Opinion at 7-8.)
An attorney's failure to make a meritless objection or motion does not constitute ineffective assistance of counsel. Jones v. Smith, 231 F.3d 1227, 1239 n.8 (9th Cir. 2000) (citing Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985)). See also Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) ("the failure to take a futile action can never be deficient performance"). "To show prejudice under Strickland resulting from the failure to file a motion, a defendant must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him." Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (citing Kimmelman, 477 U.S. at 373-74) (so stating with respect to failure to file a motion to suppress on Fourth Amendment grounds)). See also Van Tran v. Lindsey, 212 F.3d 1143, 1156-57 (9th Cir. 2000) (no prejudice suffered as a result of counsel's failure to pursue a motion to suppress a lineup identification), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).
Petitioner has failed to demonstrate that if a motion seeking suppression of the bus ticket and his statements had been brought, it would have been meritorious and would have resulted in a more favorable verdict. Petitioner does not dispute that he was outside the apartment when arrested nor does petitioner dispute that he fled Olivas' apartment believing the intruder was a jealous ex-husband. Given that undisputed fact the warrantless entry of police into Olivas' apartment could not have resulted in the suppression of the evidence seized from petitioner. On this point, the undersigned notes that the trial court denied petitioner's Marsden motion, where petitioner's primary concern was ...