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Tincher v. Sisto

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 12, 2010

KENNETH HARVEY TINCHER, PETITIONER,
v.
D. K. SISTO, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the judgment of conviction entered against him by the Yolo County Superior Court in 2005 for receiving stolen property in violation of California Penal Code § 496(a). Petitioner seeks federal habeas relief on the grounds that his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, petitioner's application for habeas corpus relief will be denied.

PROCEDURAL BACKGROUND

On July 15, 2005, a Yolo County Superior Court jury found petitioner guilty of receiving stolen property. (Notice of Lodging Documents on November 18, 2008 (Doc. No. 8), Resp't's Lod. Doc. 4 at 313, 315-16.) On July 18, 2005, the trial court found, following a court trial that sentencing enhancement allegations with respect to prior conviction and three prior prison terms to be true. (Id. at 319-21.) On September 28, 2005, petitioner was sentenced to a state prison term of twenty-five years to life plus three one-year consecutive enhancement terms for the prior convictions/prisons terms. (Id. at 365-67, 371-72.)

Petitioner appealed from his conviction to the California Court of Appeal for the Third Appellate District. On May 17, 2007, the judgment of conviction was affirmed in a reasoned opinion.*fn1 (Resp't's Lod. Doc. 1.)

Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 2.) On July 25, 2007, the California Supreme Court summarily denied that petition. (Resp't's Lod. Doc. 3.)

On July 25, 2008, petitioner filed this federal habeas petition. On November 18, 2008, respondent filed an answer. Petitioner then filed a traverse on December 22, 2008.

FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the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

About 6:00 p.m. on August 9, 2004, while talking on the telephone with her mother, Janine Chandler looked out the window of her home and noticed a white car driving around her cul-de-sac on Bidwell Street in Davis. Her mother mentioned that defendant, Chandler's first cousin, might be "on the run" from something. Chandler mentioned the white car to her mother and 30 seconds later, defendant walked by Chandler's window. He then rang her doorbell and knocked on her door. Not knowing why defendant was on the run, Chandler locked the door, stood by the door for a few minutes and then called the police.

Shortly thereafter, Davis Police Officers Michael Moore and Steve Ramos arrived at Chandler's and found defendant lying on the grass near her apartment. Prior to arrival, Officer Moore ran defendant's name and date of birth and found no wants or warrants in the system. A white Ford Crown Victoria was parked next to the curb closest to Chandler's apartment. Officer Moore asked defendant for identification. Defendant claimed he had none and identified himself as "Jim Clark" with a birth date of April 26, 1958. Officer Moore learned from dispatch that there were no outstanding warrants for such person. Officer Moore asked defendant why defendant was there. Defendant explained he was there to see Chandler, his cousin, and had been dropped off by a friend. Defendant denied knowing anything about the white car parked at the curb. Having obtained defendant's consent, Officer Ramos searched defendant and found Ford car keys and a torn piece of envelope with Chandler's name and phone number. Officer Jeff Beasley who had arrived discovered that the Ford car keys in defendant's possession opened the white car parked at the curb. Officer Beasley felt the rim of a tire on the white car and found that it was warm suggesting that the car had just been driven. Defendant then said the Ford car keys belonged to his brother's car. Defendant claimed he was planning to work on the white car. When Officer Beasley ran the license plate (5BJK126) on the white car, he learned that it was assigned to a Chevrolet registered to Karina Ritchie of Galt. Officer Beasley then ran the vehicle identification number and learned that the white car belonged to Reba and Bradley Tincher who officers later learned were defendant's mother and brother. The proper license plate assigned to the white car was 3DGZ155. Officers suspected the car was stolen and searched it. On the driver's side floorboard, Officer Beasley found a wallet with defendant's driver's license and social security card. On the back seat under clothing and a box, Officer Beasley found a license plate (4WQY719) later learned to belong to a Chevrolet registered to Robin Grubel of Sacramento. In the car, the other half of the envelope (seized from defendant's person) was found.

Officer Moore interviewed Chandler who confirmed that defendant is her cousin. Officer Moore understood from dispatch that Chandler believed that defendant may be wanted. Chandler explained she saw a white car in the street just prior to defendant knocking on her door. Chandler provided to Officer Moore the Placerville telephone number for defendant's mother and brother. When confronted with his true identity, defendant initially denied it but eventually said that he sometimes went by his real name. Officer Moore talked on the telephone with Bradley Tincher, defendant's brother. Officer Moore asked Bradley whether defendant had permission to drive the car, when Bradley had last seen defendant and whether defendant was in any kind of trouble with police.

Based on Chandler's belief that defendant may be wanted and learning that defendant resided in El Dorado County, Officer Moore spoke to El Dorado County Deputy Sheriff Foxworthy. Deputy Foxworthy explained that there was a current case against defendant. A warrant had not yet been issued although charges were anticipated. Deputy Foxworthy referred Officer Moore to the district attorney's office and asked that the white car be searched for a black-handled hammer, evidence in the El Dorado case. Officer Ramos found such a hammer in a tool box in the back seat. Later on August 9, 2004, Officer Moore received a fax from El Dorado County with a probable cause declaration which described a family fight between defendant and his brother. At the time of trial, Officer Moore did not know whether any charges had been filed in El Dorado County against defendant in connection with the fight which the officer believed occurred just days if not hours before the current charge. Officer Moore arrested defendant for possession of stolen property. When advised of his right to remain silent, defendant stated he understood and would only respond to the questions he wanted to answer. He explained he gave a false name because he did not know what the officer wanted and that he was afraid because his license had expired. He denied being related to the white car or license plates in any way.

Chandler stated that the next day, August 10, 2004, Reba and Bradley Tincher picked up the white car which remained parked at the curb in front of Chandler's building.

The prosecutor presented additional evidence related to the license plates found on and in the white car. Earlier on August 9, 2004, Grubel and her gardener, Steve Bell, found a man near Grubel's Ford Escort and confronted him about what he was doing. The man claimed the car belonged to him or his girlfriend. When Grubel and Bell explained that the car belonged to Grubel, the man seemed annoyed and left with his backpack. Later that evening, Grubel received a call from Davis Police and learned they had the plate to her car (4WQY719). She checked the front and back of her car and discovered plates which belonged to the white car (3DGZ155). Grubel had given no one permission to use her plates. On August 19, 2004, neither Grubel nor Bell positively identified defendant from a photo lineup as the man near Grubel's car. Bell picked defendant's and another person's photo and was 60 to 70 percent certain with respect to the latter and 40 percent certain with respect to defendant. Grubel was 75 percent certain it was another person in the lineup.

Ritchie received a call from Davis Police that they had the plate to her car (5BJK126). She checked her car and discovered a plate which belonged to Grubel's car (4WQY719). Ritchie had given no one permission to use her plates.

No useable fingerprints were found on the stolen license plates.

(Resp't's Lod. Doc. 1 (hereinafter Opinion).)

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). 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 § 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 Claim

A. Ineffective Assistance of Trial Counsel

Petitioner claims that his trial counsel rendered ineffective assistance by: (1) failing to object to inadmissible evidence and unsupported prosecutorial argument; (2) failing to introduce exculpatory evidence; (3) failing to raise concerns related to his restraint; and (4) failing to subject the prosecution's case to meaningful adversarial testing. (Pet. at 4-8.) Petitioner also claims that the cumulative effect of his trial counsel's errors violated petitioner's right to a fair trial. (Id. at 8.) 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 such a claim 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).

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)). 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).

2. Failure to Object

Petitioner asserts that his trial counsel failed to object to the introduction of the unrelated and uncharged El Dorado County crime and to the introduction of the hammer recovered from the Crown Victoria into evidence at his trial. (Pet. at 5.) Petitioner claims that his prior trial counsel, who had represented him at his first trial on these charges, successfully moved for the exclusion of this evidence. (Id. at 4.) After his first trial ended in a hung jury, petitioner was re-tried but was represented by different counsel. Petitioner argues that his trial counsel at his second trial failed to object to the introduction of the evidence in question and that the "prosecution took full advantage of this." (Id. at 5.) He asserts that the prosecutor showed the hammer to the jury "gesturing with it" and arguing that petitioner "had a great motive to be in that car away from El Dorado County, in that car with the phony plates on it. He was on the run." (Id.)

On appeal, the California Court of Appeal specifically rejected petitioner's argument that his trial counsel rendered ineffective assistance by failing to object to the admission of evidence of petitioner's other crime. The court reasoned as follows:

Defendant contends that counsel rendered ineffective assistance in failing to object to inadmissible other crimes evidence under Evidence Code sections 1101 and 352. Defendant claims the inadmissible evidence was that he was "on the run," Chandler's belief that defendant was wanted in El Dorado County and that defendant possessed a hammer used in the El Dorado case. FN Defendant argues the other crimes evidence was inadmissible to show that he had the propensity to commit the crime charged, receiving stolen property, and prejudicial because it suggested he is a violent offender. Defendant asserts there was no nexus between the El Dorado crime and the crime charged to introduce the evidence to show motive. Defendant argues the lack of the preliminary fact, that is, "a warrant or other evidence tending to establish the police actively pursued [defendant]," made the evidence inadmissible to show motive. In his reply brief, defendant claims there was no evidence that he knew of the investigation or that he was wanted because he did not testify. Defendant also claims in his reply brief that the jury was not given a limiting instruction on the other crimes evidence.

FN. Defendant claims Chandler testified that she believed that defendant had an outstanding warrant.

His record citations do not support this claim.

Officer Moore testified that dispatch and Chandler told him that she believed defendant may be wanted for some reason.

To establish ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington, 466 U.S. 668, 687-688 (1984); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) To demonstrate prejudice, defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (People v. Williams (1997) 16 Cal.4th 153, 215.)

Defendant cannot demonstrate that had defense counsel objected, a more favorable result would have occurred. A trial court previously ruled that testimony regarding an outstanding warrant was admissible to prove motive. Defendant's first trial on the charge of receiving stolen property resulted in a mistrial after the jury was deadlocked. Prior to that trial, defendant's then defense counsel moved to exclude testimony regarding an outstanding warrant from another county. The court denied the motion on the basis that testimony that defendant believed there was a warrant would tend to prove his motive to run.FN New defense counsel's performance in defendant's second trial was not deficient in deciding not to reargue the motion.

FN. The record reflects the following discussion on the motion: "THE COURT: All right. There is also motion [sic] we talked about-a motion to exclude testimony regarding an outstanding warrant"[DEFENSE COUNSEL]: Right.

"THE COURT:-from another county. And when I indicated to counsel that on the basis of motive that's the motive why he would run, then I would allow testimony that he believed there was a warrant, not whether there was or was [sic] in reality, whether they believed there was a warrant which would give motive to run.

"[DEFENSE COUNSEL]: That can be proven.

"THE COURT: Yes."

Evidence Code section 1101, subdivision (b), provides in relevant part that "evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive . . . ." other than to prove criminal disposition or propensity is relevant and admissible. In determining whether circumstantial evidence of a prior uncharged bad act is admissible, the court considers the materiality of the fact sought to be proved, the tendency of the uncharged bad act to prove the material fact and the existence of any rule requiring exclusion. (People v. Miller (2000) 81 Cal.

App.4th 1427, 1447.)

In admitting evidence of other crimes, the court must weigh the probative value of such evidence which must be substantial against the danger of undue prejudice, of confusing the issues or of misleading the jury. (People v. Carter (2005) 36 Cal.4th 1114, 1149.)

Motive is not an element of the crime of receiving stolen property (§ 496, subd. (a); CALJIC Nos. 14.65 [elements of receiving stolen property], 2.51 [motive] ) but the intermediate fact of motive tended to prove the ultimate facts of identification and the required element of knowledge. (People v. Lewis (2001) 26 Cal.4th 334, 370.) "Sections 400 through 405 of the Evidence Code define the terms and set forth the procedures to be utilized where the admissibility of evidence is dependent upon the existence of a preliminary fact. As used in these sections, a '"preliminary fact" means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.' (Evid. Code, § 400.)" (People v. Herrera (2000) 83 Cal. App.4th 46, 60.)

Evidence Code section 402 provides: "(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. [¶] . . . [¶] (c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute."

Under Evidence Code section 403, subdivision (a), "[t]he proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the preferred evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: [¶] (1) The relevance of the proffered evidence depends on the existence of the preliminary fact; [or] [¶] (2) The preliminary fact is the personal knowledge of a witness concerning the subject matter of his testimony."

Here, defendant contends the missing preliminary fact was a warrant or other evidence that the authorities were actively pursuing him. Simply stated, defendant's claim fails because Evidence Code section 403 applies only when the preliminary fact "is disputed." (Evid. Code, § 402, subd. (a).) To the extent defendant claims counsel's performance was deficient in failing to present evidence to dispute the preliminary fact, the claim is rejected. Although Officer Moore did not know whether a warrant issued, there was "other evidence" that El Dorado County authorities were actively pursuing defendant. A probable cause declaration had been issued and the case had been referred to the prosecutor to file charges. On this record, we cannot say counsel's performance was deficient in failing to present contrary evidence. The jury learned few details about the prior crimes, only that there had been a fight between defendant and his brother, El Dorado County law enforcement was investigating defendant's involvement, somehow a hammer was evidence in the case, charges were anticipated, and a probable cause declaration had been issued but a warrant had not yet been issued. The probative value was substantial. The prosecutor used the circumstantial evidence to argue defendant's motive of using stolen plates to avoid apprehension by El Dorado County law enforcement. There was no danger the jury would have confused the issues.

We conclude that defendant has failed to establish ineffective assistance of counsel.

Opinion at 10-15.

Here, petitioner asserts that his trial counsel at his first trial successfully "moved to exclude [the] hammer from evidence and testimony that petitioner was wanted by another county." (Pet. at 4.) Petitioner does not provide any citation to support this assertion and it is unsupported by the record. In this regard, prior to petitioner's first trial the trial court actually held that testimony regarding the belief in an outstanding warrant from another county would be admissible because such a belief would be relevant to providing a basis for petitioner's motive to run. (Reporter's Transcripts on Appeal "RT" at 99.) Only testimony regarding whether a warrant actually existed was excluded at petitioner's first trial. (Id.) Indeed, Officer Moore testified at the first trial that Jan Chandler told him that she believed that petitioner may have had an outstanding warrant from El Dorado County. (Id. at 189.)*fn2

As the California Court of Appeal noted, petitioner's counsel at his second trial was not deficient in deciding not to attempt to reargue an issue that had already been decided at petitioner's first trial, as such an argument would have been meritless. Moreover, the state appellate court's determination that testimony regarding the belief that petitioner had an outstanding warrant was properly admitted under state law indicates that even if petitioner's trial counsel had objected to the introduction of this evidence, the objection would also have been meritless. Of course, 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 Rhoades v. Henry, 596 F.3d 1170, 1179 (9th Cir. 2010) (counsel did not render ineffective assistance in failing to investigate or raise an argument on appeal where "neither would have gone anywhere"); Matylinsky v. Budge, 577 F.3d 1083, 1094 (9th Cir. 2009) (counsel's failure to object to testimony on hearsay grounds not ineffective where objection would have been properly overruled), cert. denied, ___U.S.___, 130 S.Ct. 1154 (2010); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) ("the failure to take a futile action can never be deficient performance"). Thus, petitioner has failed to demonstrate how his counsel's failure to object to this testimony was outside the range of professionally competent assistance. Strickland, 466 U.S. at 687-688.

Even assuming arguendo that the failure to object was an error, petitioner would still be unable to demonstrate prejudice with respect to this aspect of his ineffective assistance claim. In order to demonstrate prejudice petitioner must show "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. Even if the hammer and all testimony relating to petitioner possibly being wanted in El Dorado County had been excluded from his second trial, the evidence of petitioner's guilt would have remained considerable. Petitioner gave a false name, lied about how he arrived at the location, and denied being associated in any way with the Crown Victoria vehicle. (RT at 439.) Officers thereafter found a key to that vehicle in petitioner's pocket, as well as a torn envelope with the address and phone number of petitioner's cousin, Jan Chandler, written on it. (Id. at 440-42, 443.) The other half of that envelope was found inside the Crown Victoria. (Id. at 443.) Also found inside that vehicle was a wallet containing petitioner's driver's license and social security card. (Id. at 455.) A stolen license plate was in the backseat and a second stolen plate was attached to the rear of the Crown Victoria vehicle. (Id. at 583, 591).

Presented with this evidence, there is not a reasonable probability that the jury at petitioner's trial would have reached a different verdict if only his trial counsel had successfully attempted to exclude from evidence the hammer and the testimony that petitioner was possibly wanted by El Dorado County. The state court's rejection of this claim was neither contrary to, nor an unreasonable application of, clearly established constitutional law. Therefore, petitioner is not entitled to federal habeas relief on this aspect of his ineffective assistance of counsel claim.

3. Exculpatory Evidence

Petitioner asserts that his trial counsel was ineffective by failing to introduce exculpatory evidence at his second trial. (Pet. at 4.) Specifically, petitioner argues that his trial counsel failed to introduce evidence that the reason petitioner gave a false name when confronted was that he feared there was an outstanding warrant for his arrest for failure to appear at a child support hearing. (Id. at 5-6.) Petitioner also claims that his counsel failed to introduce evidence, such as police reports, insurance records and DMV records, that petitioner's brother, Bradley Tincher, had a history of vehicles being "taken" and sometimes returned with the license plates "switched." (Id. at 7.) Petitioner also takes issue with his counsel's failure to introduce evidence that after petitioner's arrest, the Crown Victoria required repair due to the left front brake "locking up and super heating" and that "there was no center console" or "transmission hump" in that vehicle. (Id. at 7.)*fn3

At petitioner's first trial, the trial court denied a defense motion to suppress evidence that petitioner was wanted in another county on the grounds that such testimony "would tend to prove his motive to run." (RT at 99.) Had petitioner's trial counsel argued to the jury that petitioner's behavior was better explained by his belief that he had an outstanding warrant for failure to appear, it appears that such an argument would have only served to strengthen the prosecution's argument that petitioner had a motive to run, as well as possibly negatively impacted the jury's perception of petitioner because of his failure to appear.

Additionally, Officer Moore testified at trial that once petitioner's true identity was determined, petitioner explained to officers that he gave a false name "because he was afraid that his license was expired." (RT at 468.) Arguing that petitioner actually gave a false name because he was concerned about an outstanding warrant for failure to appear would only attribute an additional inconsistent statement to petitioner, without any possible benefit to the defense. There were therefore a number of tactical reasons why petitioner's trial counsel may have decided not to pursue this issue in the manner petitioner now claims it should have been pursued. This tactical decision does not appear to be unreasonable under the circumstances of this case and thus does not constitute deficient performance. SeeStrickland, 466 U.S. at 690 ("strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable").

As to petitioner's argument that his counsel was ineffective by failing to introduce police reports, insurance records and DMV records relating to Bradley Tincher's history with missing vehicles and "switched" license plates, his trial counsel did in fact subpoena Bradley Tincher as a defense witness. (RT at 666). However, Bradley Tincher appeared at petitioner's trial with counsel and asserted his Fifth Amendment privilege not to testify. (Id.) Without Bradley's testimony it is not clear how petitioner's trial counsel would have effectively presented this evidence to the jury or even entered these documents into evidence. Petitioner does not offer any such explanation as to how his counsel should have proceeded under these circumstances.

Moreover, petitioner has failed to demonstrate any prejudice with respect to this aspect of his claim. Petitioner argues at length that it was Bradley Tincher who had the motive to steal and switch these license plates. (Traverse at 12-14.) Nevertheless, petitioner was convicted of receiving stolen property, not theft. Thus, even if the all the records relating to Bradley had been presented to the jury at petitioner's trial, they would not have rebutted the considerable evidence of petitioner's guilt, which included that petitioner lied about his identity and his connection to the Crown Victoria, that a key to the to the Crown Victoria and the torn envelope connecting him to the location were found inside his pocket, that inside the Crown Victoria were petitioner's driver's license, social security card, the matching end of the torn envelope, and a stolen license plate. Presented with this evidence there is no reasonable probability that petitioner's jury would have reached a different verdict if only Bradley's records had been presented to the jury.

With respect to the failure to introduce evidence about the vehicle's brake "locking up and super heating" and that "there was no center console" or "transmission hump" in that vehicle, petitioner argues that such evidence could have been used to "impeach" the testimony of Officer Beasley. (Traverse at 9.) Again, petitioner has failed to demonstrate deficient performance or prejudice with respect to this aspect of his claim.

The importance of the warmth of the vehicle's brake was that it indicated to Officer Beasley that the vehicle had been recently driven and therefore may have been the vehicle petitioner drove to the scene of his arrest. (RT at 582.) That speculation was confirmed by the discovery that petitioner possessed the key to the vehicle and the finding of petitioner's driver's license and social security card inside the vehicle. Whether or not the vehicle's brake was actually warm was therefore irrelevant, as that evidence merely resulted in the officers conducing further investigation. Similarly, the fact that there was no center console or transmission hump in the Crown Victoria vehicle would have at best shown that Officer Beasley's memory was imperfect, but would not have seriously called into question the reliability or credibility of his testimony. Ultimately the evidence as a whole conclusively linked petitioner to the Crown Victoria whether or not the brakes were warm or the vehicle had a center console or a transmission hump.

Accordingly, for the above reasons, petitioner is not entitled to federal habeas relief on this aspect of his ineffective assistance of counsel claim.

4. Restraint

Petitioner asserts that the trial judge ordered that the jury be in the jury room whenever petitioner was being transported to and from the courtroom. (Pet. at 8). Petitioner claims that on three occasions officers transported him to court in view of jurors while he was shackled and chained. (Id.) Petitioner argues this led jurors to believe that the case "involved more than just a license plate . . . gave weight to the prosecution's other crimes" argument, and scared one juror who almost "crashed into petitioner in the hall." (Id.) Petitioner alleges that his trial counsel provided ineffective assistance by failing to raise an objection regarding the jurors seeing him shackled during transportation. This specific claim appears to be unexhausted and has not been addressed by respondent in the answer. However, the court will nevertheless deny relief as to this aspect of petitioner's ineffective assistance of counsel claim pursuant to 28 U.S.C. § 2254(b)(2).

Assuming petitioner's trial counsel refused to raise petitioner's concerns to the trial judge, this claim would still fail because a jury's brief or inadvertent glimpse of a defendant in physical restraints outside of the courtroom is not inherently or presumptively prejudicial. See e.g., Ghent v. Woodford, 279 F.3d 1121, 1132 (9th Cir. 2002) (jurors' view of defendant in the hallway and being transported in restraints on several occasions not unduly prejudicial); United States v. Olano, 62 F.3d 1180, 1190 (9th Cir. 1995) (same). Thus, in cases where jurors observe a defendant in shackles outside of the courtroom, actual prejudice must be demonstrated. Wilson v. McCarthy, 770 F.2d 1482, 1485-86 (9th Cir. 1985) (a jury's brief, inadvertent observation of a defendant in custody does not compel reversal in the absence of an affirmative showing of actual prejudice); United States v. Halliburton, 870 F.2d 557, 560-61 (9th Cir. 1989) (same). See also Dupont v. Hall, 555 F.2d 15, 17 (1st Cir. 1977) (noting that even the "most unsophisticated juror" knows that defendants may have to post bail and that some lack the resources to do this); United States v. Leach, 429 F.2d 956, 962 (8th Cir. 1970) ("[i]t is a normal and regular as well as a highly desirable and necessary practice to handcuff prisoners when they are being taken from one place to another, and the jury is aware of this").

Petitioner has failed to demonstrate actual prejudice, arguing only that he "feels sure" that these sightings prejudiced him. (Pet. at 8.) However, trial counsel was not deficient for failing to raise this issue to the trial judge if petitioner was not prejudiced by the viewing. Petitioner has also failed to demonstrate prejudice stemming from his counsel's alleged error, as it is not reasonably probable that petitioner's jury would have reached a different verdict if only his trial counsel had raised this issue with the trial court. Accordingly, petitioner is not entitled to federal habeas relief on this aspect of his claim of ineffective assistance of counsel.

5. Meaningful Adversarial Testing

Petitioner asserts that his trial counsel failed to subject the prosecution's case to "meaningful adversarial testing." (Pet. at 4.) In this regard, petitioner argues that during his closing argument defense counsel failed to point out to the jury that Jan Chandler was unable to identify the make or model of the white vehicle she saw, was unable to identify who she saw in the vehicle, or even confirm that the vehicle stopped. (Traverse at 21.) Moreover, petitioner alleges his trial counsel failed to object when the prosecutor argued to the jury that Chandler did in fact see the White Crown Victoria arrive. (Id.) This specific claim appears to be unexhausted and has not been addressed by respondent in the answer. However, the court will nonetheless deny relief with respect to this aspect of petitioner ineffective assistance of counsel claim pursuant to 28 U.S.C. § 2254(b)(2).

Petitioner's apparent belief in the importance of Chandler's testimony in this regard is misplaced. Petitioner was accused of violating California Penal Code § 496(a). "To obtain a § 496(a) conviction, the prosecution must prove only that: (1) the property was stolen; (2) the defendant knew that the property was stolen; and (3) the defendant had possession of such property." Castillo-Cruz v. Holder, 581 F.3d 1154, 1161 (9th Cir. 2009). There was no dispute at petitioner's trial that the license plates were stolen. Moreover, there was considerable evidence introduced that petitioner had possession of the plates since they were found attached to, and inside of, the Crown Victoria, as were petitioner's driver's license and social security card. As noted above, the key to the vehicle was also found in petitioner's pocket, as was the other half of a torn envelope that was found in the car. Thus, the evidence introduced at trial linking petitioner to the Crown Victoria was overwhelming regardless of Chandler's testimony.

For the prosecution, the central issue at trial therefore was to prove that petitioner knew the plates were stolen. Thus, during closing arguments the prosecutor repeatedly raised petitioner's denial to authorities that he had anything to do with the Crown Victoria, implying that it indicated petitioner's knowledge of the stolen plates. In this vein, the prosecutor argued:

And its significance to you, I would suggest, is that his representation to the police were to completely evade any connection with that white Crown Victoria.

We don't know who may have dropped the defendant off. You're left - - I suppose we're left to guess as to who that person may have been. But we do know this, that everything that the defendant did was to keep distance from that White Crown Victoria. It's almost as if that car was completely radioactive. He did not want to be anywhere near it.

And I would suggest to you that the reason this car was radioactive because we know it had - - it was kind of like - - wasn't it a crime scene on wheels? Stolen plate on the back. Stolen plate in the inside of the car.

(Id. at 683, 688)

It appears likely that petitioner's counsel made a tactical decision to refrain from focusing his challenge on the relatively unimportant testimony of Chandler, which was primarily used to describe the scene and explain the arrival of the police, and instead to focus on the elements of the offense. Such a tactical decision was not unreasonable under the circumstances of this case and thus does not constitute deficient performance. SeeStrickland, 466 U.S. at 690 ("strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable"). Moreover, even if trial counsel's performance was deficient in this regard, even the most successful attack upon Chandler's testimony would not have altered the essential facts of this case as established by the evidence. Thus, petitioner has failed to show "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. Accordingly, he is not entitled to federal habeas relief on this aspect of his ineffective assistance of counsel claim.

6. Cumulative Effect

Petitioner asserts that the cumulative effect of the alleged errors of his counsel denied him his right to a fair trial. (Pet. at 8.) This specific claim also appears to be unexhausted and has not been addressed by respondent in the answer filed in this action.*fn4 The court will nevertheless deny relief as to this aspect of petitioner's ineffective assistance of counsel claim pursuant to 28 U.S.C. § 2254(b)(2).

The Ninth Circuit has concluded that under clearly established federal law, the combined effect of multiple trial errors may give rise to a due process violation if it renders a trial fundamentally unfair, even where each error considered individually would not require reversal. Parle v. Runnels, 505 F.3d 922, 927 (9th. Cir. 2007) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) and Chambers v. Mississippi, 410 U.S. 284, 290 (1973)). "The fundamental question in determining whether the combined effect of trial errors violated a defendant's due process rights is whether the errors rendered the criminal defense 'far less persuasive,' Chambers, 410 U.S. at 294, and thereby had a 'substantial and injurious effect or influence' on the jury's verdict." Parle, 505 F.3d at 927 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). See also Hein v. Sullivan, ___ F.3d ___, 2010 WL 1427588, *15 (9th Cir. Apr. 12, 2010) (same).

This court has addressed each aspect of petitioner's claim of ineffective assistance of counsel above and has concluded that no error of constitutional magnitude occurred. Therefore, the court also concludes that the alleged errors of petitioner's counsel, even when considered in combination, did not render petitioner's defense "far less persuasive," nor did they have a "substantial and injurious effect or influence on the jury's verdict." Parle, 505 F.3d at 927. Accordingly, petitioner is not entitled to habeas relief with respect to his claim of cumulative error.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that petitioner's application for a writ of habeas corpus (Doc. No. 1) is denied.

Under Rule 11 of the Federal Rules Governing Section 2254 Cases the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).

For the reasons set forth above, petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action.


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