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Allen v. Shepard

January 26, 2010

TONY ALLEN, JR., PETITIONER,
v.
MARK SHEPARD, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding with a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Petitioner is represented in these proceedings by attorney Efren Williams. The second amended habeas petition before the court challenges petitioner's 2001 conviction in the Sacramento County Superior Court for second degree murder (Cal. Penal Code § 187(a)) with a use of a firearm (Cal. Penal Code § 12022.53(b)-(d)). Petitioner seeks relief on the grounds that: (1) his trial counsel rendered ineffective assistance; (2) the evidence presented at his trial was insufficient to support the verdict; (3) he was denied the right to a fair trial because the trial judge was biased against him; and (4) his rights to due process and a fair trial were violated by prosecutor's failure to disclose exculpatory evidence to the defense. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn2 , the California Court of Appeal for the Third Appellate District provided the following factual summary:

The incident that gave rise to the charges occurred on January 30, 1999. At that time, defendant was married to two women.*fn3 He had married Deborah 10 or 12 years before. At some time, he began living in Denver, Colorado, and then married Lateshia in 1997. Although defendant lived in Denver most of the time, it appears that when he visited Sacramento, he expected to enjoy the benefits of his marriage to Deborah.

During 1998, neither wife enjoyed the benefits of defendant's company because he was incarcerated on a parole violation. During that time, Deborah formed a romantic relationship with the victim, David Bell. And she decided to dissolve her marriage to defendant.

Defendant was released from incarceration in December 1998, and sometime around the beginning of 1999, Deborah told him that she was proceeding with a dissolution action. Defendant replied that a dissolution was just a piece of paper and that she would still be his wife. Bell wanted Deborah to tell defendant about their relationship. However, Deborah did not want defendant to find them together.

On the day before the murder, Bell accompanied Deborah while she made the payment for her dissolution. The day of the murder, Bell and Deborah spent the morning together. The day before, defendant flew from Denver to Sacramento to pick up his Ford Expedition, which had been left in Sacramento for automotive work. While Deborah was out with Bell, her daughter called to advise that defendant was in town and had called. Bell wanted to find defendant to tell him that he and Deborah were together, but Deborah refused. Eventually, Bell left Deborah at her house and said he was going to Oakland and would see her later.

Some time after Bell left, defendant called and said he was coming to visit. Deborah told him she wanted him to take his possessions out of her house. Defendant visited Deborah that evening and stayed for several hours. Bell called and let Deborah know he was aware defendant was there. Bell wanted to talk to defendant, but Deborah refused. Bell told Deborah that she should tell defendant they were together or should stop seeing him, although his language was more colorful, and hung up. Moments later, Bell called back and defendant answered. After a short conversation, defendant hung up. He then left the house.

Bell drove to Deborah's house and parked on the street. After he got out of his car, he was shot. Most of the neighbors reported hearing three shots, and there were three expended shell casings found in front of Deborah's house. Bell was hit with two shots, one to the right side of his rib cage and one to the face. The shot to the face was the more serious wound. The bullet shattered teeth, passed through the tongue, and lodged in the neck, where it damaged the internal carotid artery.

Bell left a trail of blood while he went down the street seeking assistance. Bell received help from a neighbor who called 9-1-1. While they waited for emergency personnel to arrive, the operator asked what happened. Bell said he was shot by defendant, gave a brief description of the perpetrator and the location of the shooting, and said it was over a girl. He repeated these statements to the first police officer who arrived on the scene. Bell was taken to the hospital for emergency surgery. He survived for about two weeks until the attempted repairs to his carotid artery failed and he died. After the shooting, defendant returned to Denver, where he obtained a driver's license and began living under the name of Antoine Holley. Denver police eventually learned that defendant was using the name Antoine Holley and began looking for him under that name. Defendant returned to Sacramento and was later arrested.

Initially, Deborah was cooperative with police investigators and made many statements implicating defendant in the murder. Deborah followed through on her dissolution action, and the marriage was dissolved on July 5, 2000. But as the proceedings progressed, Deborah and defendant reconciled. Deborah sought to avoid testifying and, obviously to that end, remarried defendant on July 19, 2001. Her testimony was replete with instances in which she testified contrary to her earlier statements, either denied or claimed not to remember her earlier statements, and asserted that the police investigators intimidated her and she was just telling them what they wanted to hear. Many of Deborah's earlier statements were admitted as prior inconsistent statements. (Evid. Code, § 1235.) (Opinion at 2-4.)*fn4

After he was convicted, petitioner retained new counsel, who filed a motion for new trial arguing that petitioner's trial counsel had rendered ineffective assistance. The trial court took testimony and evidence and resolved those claims adversely to petitioner, denying the motion for a new trial. (Reporter's Transcript on Appeal (RT) at 2825.)

Petitioner's judgment of conviction was affirmed by the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 4.) On April 14, 2004 petitioner's Petition for Review was summarily denied by the California Supreme Court. (Resp't's Lod. Doc. 6.) Petitioner filed pro se habeas petitions in state court in which he raised claims relating only to the alleged bias of the trial judge and the claimed Brady violation. (Resp't's Lod. Docs. 7, 9 & 11.) Those petitions were all denied, culminating with the California Supreme Court's summary denial of habeas relief on July 26, 2006. (Resp't's Lod. Doc. 8, 10, & 12.)

On May 30, 2006, Rick von Geldern executed a declaration in which he stated that he was the private investigator retained by petitioner's trial counsel to work on petitioner's case. (See Resp't's Lod. Doc. 13, Ex. 1.) Mr. von Geldern related in his declaration, among other things, some of the trial investigation he conducted in the case, investigation he did not conduct, and directions he had received from petitioner's trial counsel. (Id.) Petitioner's current counsel in these federal habeas proceedings has represented that petitioner received the von Geldern declaration sometime in 2006, at around the same time current habeas counsel was being retained.

On August 25, 2006, petitioner's counsel filed a petition for writ of habeas corpus with this court which included several admittedly unexhausted claims, including claims of ineffective assistance of trial counsel and insufficiency of the evidence based, at least in part, upon the then-recently received von Geldern declaration. (Doc. No. 1.) On November 1, 2006, prior to the filing of a response, petitioner's counsel filed a first amended habeas petition expounding on his unexhausted claims. (Doc. No. 10.) In the first amended petition, counsel made clear that petitioner's unexhausted ineffective assistance of counsel claim included the allegation that his trial counsel was deficient for not having adequately investigated potential defenses based on both alibi and self-defense. (Id. at 12-18.) In addition, that petition spelled out petitioner's claim that his trial counsel was ineffective in failing to utilize an independent forensic pathologist as a defense expert witness. (Id. at 18-23.) Finally, the amended petition included the unexhausted claim that there was insufficient evidence introduced at petitioner's trial with respect to the cause of death of the victim to support petitioner's murder conviction.

On November 27, 2006, in light of the statement of non-opposition filed by respondent, this court granted petitioner's request for stay and abeyance to permit him the opportunity to exhaust the admittedly unexhausted claims noted above before the California Supreme Court. (Doc. No. 12.) On December 23, 2006, counsel filed an exhaustion petition on petitioner's behalf with the California Supreme Court. (Resp't's Lod. Doc. 13.) The petition filed with the California Supreme Court set forth all of the new, unexhausted claims referred to above, included as Exhibit 1 the von Geldern declaration, and requested that the California Supreme Court order an evidentiary hearing in connection with those claims. (Id.) The California Supreme Court denied the exhaustion petition, without conducting an evidentiary hearing, on July 11, 2007. (Resp't's Loc. Doc. 14.)

On August 21, 2007, this court issued an order lifting the stay. (Doc. No. 26.) On September 23, 2007, counsel for petitioner filed the second amended petition which contained all of petitioner's claims, including the recently exhausted ineffective assistance of counsel and insufficiency of the evidence claims referred to above. (Doc. No. 29.) On February 20, 2008, counsel for respondent filed an answer addressing all of petitioner's claims on the merits. (Doc. No. 38.) On May 2, 2008, counsel for petitioner filed a traverse. (Doc. No. 46.)

ANALYSIS

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). Title 28 U.S.C. § 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 § 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).

II. Petitioner's Claims

A. Ineffective Assistance of Counsel

Petitioner claims that his trial counsel rendered ineffective assistance of counsel by: (1) failing to adequately investigate self-defense and alibi defenses; (2) failing to utilize an independent forensic pathologist as an expert witness at trial; (3) failing to conduct an adequate investigation into the victim's background; (4) failing to object to the prosecution's introduction of inadmissible character evidence; and (5) failing to assert a "peremptory challenge" against the judge assigned to preside at trial. After setting forth the applicable legal principles, the court will evaluate these claims in turn below.

1. Legal Standards

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).

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. "This includes a duty to . . . investigate and introduce into evidence records that demonstrate factual innocence, or that raise sufficient doubt on that question to undermine confidence in the verdict." Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (citing Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999)). In this regard, 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 v. Morrison, 477 U.S. 365, 384 (1986)). 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, 242 F.3d at 1088 (quoting Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986)).

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).

2. Failure to Conduct Adequate Investigation into Possible Defenses

Petitioner claims that his trial counsel rendered ineffective assistance by failing to adequately investigate the self-defense and alibi defenses. (Second Am. Pet. at 13.) He acknowledges that his counsel presented an alibi defense at trial, but argues that the defense was improperly investigated. Specifically, petitioner argues that his trial counsel failed to investigate a tire store and a sports bar that could have provided additional support for his alibi defense. He also states that counsel "told the investigator to not produce a report of an interview of a witness who could provide an alibi for Petitioner's whereabouts on the day of the shooting." (Id. at 14.) Petitioner contends that his trial counsel "misstat[ed] the facts" when he testified at the hearing on the motion for new trial that he had instructed the investigator to investigate the tire store and sports bar. (Id.) Petitioner also states that he told his trial counsel he was with another person (Antoine Walker) on the night of the shooting. (Id. at 15.)

In support of these arguments, petitioner presents the declaration of Rick von Geldern, the private investigator retained by trial counsel to work on petitioner's case. (Resp't's Lod. Doc. 13, Ex. 1.) Mr. von Geldern states in his declaration, among other things, that he was "never directed to investigate at "Cheers" (the sports bar) or "Tires to Go" (the tire store) and in fact did not conduct investigation at those retail establishments. Von Geldern also explains:

Barbara Brown was interviewed on January 8, 2001 and she advised me that on the date of the shooting of David Bell she answered her front door and a friend of Tony Allen's was at the door. Tony Allen walked from a bedroom to the door and left with the unidentified male. Ms. Brown stated that Tony Allen had been at the house for "quite a while" prior to the knock on the door ant [sic] Tony Allen's departure from the house. Ms. Brown stated that Mr. Allen had departed "a couple of hours" prior to the police arriving at the home.

I advised [petitioner's trial counsel] of my interview with Ms. Brown and was advised not to prepare a report.

(Id.)

Petitioner also claims that his trial counsel improperly failed to investigate and present a defense based upon self-defense, even though "it was apparent from the facts that a defense theory of self-defense was the only viable defense." (Second Am. Pet. at 15.) Petitioner explains that, although he and his trial counsel discussed whether to present a defense of self-defense, his counsel decided not to present that theory of defense even though he had not conducted adequate investigation into its viability. (Id. at 14.) Petitioner states that his trial counsel did not meet with him enough and did not question him about his involvement in the shooting, nor did he ask petitioner if he knew who had shot the victim. (Id.) Petitioner asserts that a defense of self-defense "was so evident that the Court sua sponte issued self-defense jury instructions." (Id. at 17.) He argues that his trial counsel's summary rejection of a defense based upon a self-defense theory "was not the product of careful and attentive consultation with the client nor the product of a thorough investigation of the facts [but] was based upon an uninformed evaluation of Petitioner's case." (Id. at 16.)

Petitioner also contends that he suffered prejudice from trial counsel's failure to present a defense of self-defense. He notes that the jury convicted him of second degree murder even though the prosecutor argued that petitioner shot the victim after lying in wait. (Id.) Petitioner argues that "a self-defense argument that he did do it, but that he had a justifiable reason for doing it, was exactly what the jury was looking for." (Id. at 17.)

In affirming petitioner's conviction on appeal, the California Court of Appeal rejected petitioner's arguments in this regard. In doing so, the appellate court explained as follows:

Defendant's appellate arguments are based largely on his declaration and testimony in support of the new trial motion, and on a view of the record most favorable to his claim. However, consistent with the standards of appellate review, we must view the record in a light most favorable to the decision of the trial court. Thus, we will adopt the trial court's view of the facts to the extent that view is supported by the evidence.

In this light, many of defendant's assertions on appeal must be disregarded. For example, defendant asserts that [attorney] Sherriff visited him only eight times before his first trial and did not meet with him at all between the first and second trials.*fn5 However, Sherriff testified (1) it is his practice to meet with clients more than most attorneys, and (2) he met with defendant more than he meets with most clients. When the prosecutor produced the jailhouse visitor logs to refresh Sherriff's recollection, it appeared ...


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