The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER ADOPTING IN PART AND REVISING IN PART REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
On January 25, 2008, Magistrate Judge Jeffrey W. Johnson issued a Report and Recommendation, recommending that Chanh Minh Dang's petition for writ of habeas corpus be denied and dismissed with prejudice. The court adopts Section IV of the report, which finds that petitioner's first claim that his former attorney's testimony against him violated the attorney-client privilege does not state a claim cognizable on habeas review. The court also adopts Sections V and VI of the report, which find that the state court was not objectively unreasonable in denying petitioner's claims for violation of his right to be free from unnecessary physical restraint, and from cruel and unusual punishment.
For the reasons stated herein, the court declines to adopt Section VII of the report, in which Judge Johnson found that all of petitioner's ineffective assistance of counsel claims except the first had been procedurally defaulted. The court addresses this issue below.
Petitioner's fourth claim for relief alleges that he received ineffective assistance of counsel at various points during the state court proceeding. Respondent argues that all but the first of petitioner's ineffective assistance claims are procedurally defaulted because they were previously denied as untimely by the California Supreme Court. Petitioner counters that California's timeliness rule applied has not been "consistently and regularly applied."*fn1 The Report and Recommendation concluded that petitioner had not met his burden in challenging the state rule, and that his claims asserting ineffective assistance of trial counsel, save one, were procedurally defaulted as a result.*fn2 It further found that two of petitioner's ineffective assistance of appellate counsel claims were procedurally defaulted for the same reason.
Before denial of a claim on state procedural grounds will bar federal review, the rule on which the state court relied must constitute an "adequate and independent state ground" for denying petitioner's claims. Coleman v. Thompson, 501 U.S. 722, 729 (1991). In Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), the Ninth Circuit held that California's timeliness rule was an "independent" state ground because it was "not interwoven with federal law." Id. at 581-82. It could not determine, however, whether the timeliness rule was "adequate" in the sense that it was consistently applied. Id. at 583. To provide guidance to the district court on remand, the Ninth Circuit held that the burden of proof on adequacy rests with the state because procedural default is an affirmative defense, id. at 585-86, and laid out a burden-shifting procedure to be used in litigating the issue. First, respondent must plead the existence of an adequate and independent state procedural ground as a defense; once he does, petitioner must "place the defense in issue." Id. at 586. Generally, the court stated, petitioner's burden in this regard can be satisfied "by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id. If petitioner satisfies this burden, the court held, "the ultimate burden [of proving that the state procedural bar is adequate and independent] is the state's." Id.
In King v. Lamarque, 464 F.3d 963 (9th Cir. 2006), the Ninth Circuit clarified its holding in Bennett. The King court held that in cases where a state procedural rule has previously been found to be inadequate, a petitioner "may fulfill [his] burden under Bennett by simply challenging the adequacy of the procedure." Id. at 967. In such instances, "the burden then shifts back to the government to demonstrate that the law has subsequently become adequate." Id. Such a rule is necessary, the court stated, "to maintain the primary principle we announced in Bennett: the government bears the ultimate burden of establishing the adequacy of a rule." Id.
The state procedural rule at issue in King was the same timeliness rule at issue here. the King court noted that the rule had previously been found to be inadequate in capital cases, citing Morales v. Calderon, 85 F.3d 1387 (9th Cir. 1996). King, 464 F.3d at 967. Because petitioner had challenged the adequacy of a state procedural rule previously found to be inadequate, the court stated that on remand "the government must demonstrate that California's 'substantial delay' rule has become sufficiently clear and consistently applied to justify barring federal review of [the petitioner's] claim." Id. at 968.
In this case, petitioner has sufficiently challenged California's timeliness rule, a rule that the Ninth Circuit has previously found to be inadequate. He argues that "the State's procedural bar is not consistently and regularly applied,"*fn3 and alleges that the state courts improperly denied his petition because he adequately justified his delay.*fn4 This suffices to satisfy petitioner's burden under King. See King, 464 F.3d at 967 (petitioner who claimed that "the California Supreme Court's dismissal of his case demonstrates that it inconsistently applies the timeliness rule because he properly justified his delay" met his burden); Dossman v. Newland, 216 Fed. Appx. 698, 698 (9th Cir. Jan. 8, 2007) (Unpub. Disp.) (petitioner who claimed the timeliness rule was not "clear, consistently applied, and well-established at the time of [his] purported default" met his burden under King); Hernandez v. Woodford, No. C 06-3975 WHA (PR), 2008 WL 1809082, *3 (N.D. Cal. Apr. 22, 2008) (petitioner satisfied his burden by contending that his claims were not procedurally defaulted).
The burden thus shifted to respondent to "present[ ] state authority showing that the timeliness rule was clear and certain, well-established, and consistently applied in non-capital cases as of 200." Townsend v. Knowles, 562 F.3d 1200, 1207 (9th Cir. 2009). Because respondent did not do so, she did not meet her burden of proving the affirmative defense, and the court thus turns to the merits of the ineffective assistance claims that Judge Johnson found to be procedurally defaulted.*fn5
B. Ineffective Assistance of Trial Counsel
Claims of ineffective assistance of counsel are evaluated under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687. Because the test is conjunctive, the court may address either deficient performance or prejudice first. Id. at 697 ("[A] 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").
1. Petitioner's Claim 4(a/b)*fn6
Petitioner claims his trial counsel was ineffective because he failed to investigate and produce certain witnesses. Section VII of Judge Johnson's Report and Recommendation addresses the merits of this claim, and the court adopts this portion of Section VII.
2. Petitioner's Claim 4(c)*fn7
Petitioner's Claim 4(c) alleges that the attorney he retained to file and argue a new trial motion, Duane Folke, provided ineffective assistance because he failed properly to investigate and support the new trial motion with affidavits of newly discovered witnesses and failed to argue that trial counsel was ineffective because he failed to investigate and produce key defense witnesses. Folke filed a written motion for new trial and also a motion for discovery. The new trial motion stated that it was based on the discovery of three witnesses who allegedly would have offered testimony that was inconsistent with that introduced at trial. The motion did not identify the witnesses. Folke submitted a declaration stating that he had hired an investigator and required additional time to obtain documents and subpoena witnesses. Shortly after the new trial and discovery motions were filed, however, Folke moved to withdraw on the basis that petitioner was not paying his fees and expenses, including expenses associated with subpoenaing the witnesses. The trial court granted Folke's motion, and ultimately granted petitioner's request that he be permitted to represent himself in connection with the new trial motion. Petitioner moved for the appointment of an investigator; the trial court also granted this motion.
At the hearing on the new trial motion, several witnesses that petitioner had subpoenaed were present. These included the district attorney who had prosecuted the case, petitioner's trial counsel, one of the victims, Ms. Nguyen, and Mr. and Ms. Sarangabany. Petitioner did not have declarations signed by the Sarangabanys, as required by California Penal Code § 1181. See CAL. PEN. CODE § 1181(8) ("When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable"). After a portion of the hearing had been held, the trial court continued the balance of the hearing for two weeks so that petitioner could obtain the necessary declarations. Petitioner subpoenaed witnesses, including Ms. Sarangabany, for the second hearing, but did not obtain declarations from them. Because Ms. Sarangabany had been known at the time of trial (and had in fact testified), the trial court asked for an offer of proof concerning the "new evidence" she would provide. Petitioner was unable to provide one. The trial court thus excused Ms. Sarangabany without taking her testimony. Petitioner attempted to make an offer of proof regarding the pizza delivery man, Muoi; once again, however, he had no declaration and Muoi was not present at the hearing. Like Ms. Sarangabany, Muoi was known at the time of trial; the trial court commented that petitioner had not explained why Muoi's testimony could not have been produced at trial and therefore excluded evidence related to him.
Petitioner contends that Folke was ineffective because he failed to support the motion for new trial with affidavits or declarations. As respondent notes, Penal Code § 1181 does not require that declarations be filed simultaneously with a motion for new trial. Rather, it states that declarations must be produced at the time of the hearing on the motion. Thus, counsel's failure to file declarations at the time he filed the motion was not ineffective, as he was following the letter of the statute and sought, and was granted, additional time to obtain the affidavits that were required.
By the time of the hearing, of course, petitioner, at his request, was representing himself.
The trial court had given him funds to hire an investigator; petitioner nonetheless did not obtain declarations from the witnesses who purportedly could offer newly discovered evidence. Indeed, even after the trial court continued the proceeding to give him an opportunity to do so, petitioner did not obtain declarations. Petitioner asserts that Folke was more interested in collecting his fee than in diligently representing petitioner's interests.*fn8 Petitioner does not challenge the trial court's decision to grant Folke's motion to withdraw, however, or its decision permitting him to proceed pro se as grounds for habeas relief. Consequently, those matters are not properly before the court. As for Folke's performance, prior to the time he withdrew, as noted, Folke followed the dictates of Penal Code § 1181. His performance, therefore, was not deficient.
Even were this not the case, petitioner cannot demonstrate prejudice. Although his federal habeas petition did not identify the witnesses from whom he claimed Folke should have obtained declarations supporting the new trial motion, petitioner's traverse (and his state habeas petition) identified Ms. Sarangabany and Muoi as the individuals at issue. Both witnesses were known at the time of trial, and petitioner nowhere states what "new" evidence they would have presented. Furthermore, Judge Johnson correctly found, in ruling on Claim 4(a/b), that there was no reasonable probability that Ms. Sarangabany's or Muoi's testimony would have changed the outcome of the trial. Consequently, petitioner cannot show prejudice as a result of any alleged deficient performance by Folke.
Petitioner also asserts that Folke was ineffective because he failed to raise ineffective assistance of trial counsel as a ground for the new trial motion. Elsewhere in his traverse,*fn9 petitioner argues that the trial court erroneously believed it could not consider ineffective assistance of trial counsel as a basis for granting a new trial. Petitioner thus seems to contend that had Folke cited relevant case law, the trial court would have understood that it could consider his ineffective assistance of trial counsel argument. Petitioner is correct that a trial court has discretion to determine whether a new trial motion is an appropriate vehicle through which to raise a claim that trial counsel provided ineffective assistance of counsel. See People v. Cornwell, 37 Cal.4th 50, 99-101 (2005), disapproved of on other grounds in People v. Doolin, 45 Cal.4th 390 (2009). The Cornwell Court stated:
"Our cases explain that, in appropriate circumstances, the trial court should consider a claim of ineffective assistance of counsel in a motion for new trial, because 'justice is expedited when the issue of counsel's effectiveness can be resolved promptly at the trial level.'... But our assumption has been that courts would decide such claims in the context of a motion for new trial when the court's own observation of the trial would supply a basis for the court to act expeditiously on the motion. As we stated in People v. Fosselman,... 33 Cal.3d 572,...: 'It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them.... Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel's effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so.'..." Id. at 101.
As respondent notes, it is unclear whether the trial court would have concluded that it would expedite proceedings to decide petitioner's ineffective assistance of trial counsel claim in the context of the new trial motion. This is particularly true since the claim concerned performance that took place outside the courtroom and the court thus could not rely on what it had observed during the course of trial. The court need not determine whether the trial court would have entertained the argument, however. Petitioner's traverse asserts that Folke should have argued that trial counsel's failure to investigate and call Ms. Sarangabany and Muoi as witnesses constituted ineffective assistance of counsel. For the reasons stated in Judge Johnson's Report and Recommendation, such a claim would not have succeeded. Consequently, petitioner cannot show prejudice.
3. Petitioner's Claim 4(c/d)*fn10
Petitioner asserts, in Claim 4(c/d), that trial counsel was ineffective because he failed to investigate and adduce evidence that victim Nguyen's physical injuries did not show that he beat her and burned her arm with a cigarette. In his traverse, petitioner clarifies that the evidence to which he refers is a set of photographs taken three days after the incident, photographs Ms. Nguyen gave Officer Quijada of the San Gabriel Police Department. Petitioner contends the photographs should have been introduced, Officer Quijada should have been called as a witness, and the photographs should have been used to cross-examine another witness, Thuy Bui, who testified that petitioner hit*fn11 Ms. Nguyen and burned her.
Petitioner has not adduced the photographs in question, but a police report describing them is in the record.*fn12 According to the report, photographs of Ms. Nguyen's arms, legs and face were taken on September 3, 1998, two days after the incident in question, by "V-4, Bui." The photographs showed no distinguishing marks or injuries on Ms. Nguyen's legs, arms, and face.*fn13
As petitioner notes, the police report states that Ms. Nguyen said "if he hit me, wouldn't I have marks on me?" before the photographs were taken.
To establish prejudice under Strickland, petitioner bears the burden of showing a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Judicial review of an attorney's performance is "doubly deferential when it is conducted through the lens of federal habeas." Yarborough v. Gentry, 540 U.S. 1, 6 (2003). Here, assuming without deciding that trial counsel erred in failing to introduce the photographs and the injuries they depicted, the mistake was not sufficiently serious that there is a reasonable probability producing the evidence could have changed the outcome of the trial.
As respects the cigarette burn, several witnesses testified that they saw petitioner burn Ms. Nguyen with a cigarette.*fn14 Indeed, although he characterized it as an accident, petitioner himself testified that he burned Nguyen with a cigarette.*fn15 Given this testimony, it is highly unlikely that the photographs (or the report mentioning them) would have convinced the jury that Nguyen was not burned. Moreover, whether or not petitioner burned Nguyen with a cigarette was a collateral issue, having little to do with the crimes petitioner was charged with committing.
As relevant here, petitioner was charged with, and convicted of, false imprisonment by violence, and one count of assault with a deadly weapon against Nguyen.*fn16 The jury was instructed that "[a] deadly weapon is any object, instrument or weapon which is used in such a manner as to be capable of producing... great bodily injury. Great bodily injury refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury or moderate harm."*fn17 Following this instruction, the jury could not have concluded that the cigarette was a deadly weapon. Indeed, the prosecutor's closing argument on the assault with a deadly weapon charge focused on evidence that petitioner pointed a pistol and threatened to shoot.*fn18 See People v. Ausbie, 123 Cal.App.4th 855, 863 n. 5 (2004) (noting, in a case where defendant was charged with mayhem for burning another with a cigarette, that he had not been charged with assault with a deadly weapon and that mayhem does not require use of a deadly weapon), disapproved on other grounds in People v. Reed, 38 Cal.4th 1224, 1228 (2006); People v. Flores, No. F034114, 2002 WL 66151, *9 (Jan. 17, 2002) (Unpub. Disp.) (noting that there are many ways to commit mayhem without using a deadly weapon and citing People v. Keenan, 227 Cal.App.3d 26, 28-29 (1991), for the proposition that scars left by cigarette burns can constitute mayhem).*fn19
The primary evidence supporting the false imprisonment charge was that petitioner left the Huynhs' house, got a pistol from his car, reentered the house, forced his way into the room where Nguyen was hiding, pointed the pistol at her neck and dragged her away with him.*fn20 The incident involving the cigarette burn occurred before petitioner left the house to get the pistol.*fn21 At the time petitioner burned Nguyen with the cigarette, he was not trying to force her to leave with him. So, whether or not the jury concluded that ...