The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2000 conviction for involuntary manslaughter (Cal. Penal Code § 192(b)) and misdemeanor battery (Cal Penal Code § 242). Petitioner is serving a sentence of 25 years to life pursuant to the Three Strikes Law and two consecutive one years terms.
This action is proceeding on the original petition filed November 10, 2003, as to the following claims: (1) ineffective assistance of counsel (4 claims); (2) jury instruction error (4 claims); and (3) insufficient evidence to support finding of prior robbery conviction. (Dkt. No. 1.) Petitioner also requests an evidentiary hearing as to claim one.
On January 24, 2005, respondent filed an answer. (Dkt. No. 23.) On March 25, 2005, petitioner's counsel filed a traverse on petitioner's behalf. (Dkt. No. 30.)
The petition also contains a tenth claim alleging ineffective assistance of appellate counsel. Petitioner abandoned this claim in the traverse.
After carefully considering the record, the undersigned orders that the request for an evidentiary hearing is denied and recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 405. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law; or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Id. at 407-08. It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410-11 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19 (2002).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority, in arriving at their decision. Early v. Packer, 537 U.S. 3 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000).
The opinion of the California Court of Appeal on direct appeal contains a factual summary of petitioner's offense. After independently reviewing the record, the court finds this summary to be accurate and adopts it herein.
I. FACTS AND PROCEDURAL HISTORY
On the evening of May 28, 1999, appellant walked into an apartment where victims James Rendleman and Jay Badial resided. Rendleman, Badial, and their friend Ed Nunez, as well as several other men and women were watching television and drinking, in an informal social gathering.
Appellant gained entry into the apartment without permission, by passing through the open front door and a closed but unlocked screen door. Badial, who was familiar with appellant, ordered appellant to "get the F out," but appellant did not leave. Instead of leaving, appellant became embroiled with Badial and Rendleman in an apparent dispute over an $8 debt owed to him by Rendleman's former girlfriend. Although Nunez gave appellant $5, appellant was not satisfied and kept asking for the balance of $3. Throughout this argument, Badial kept yelling for appellant to leave, but he used no force to expel him from the apartment.
Appellant was the first to resort to violence. He hit Badial in the face, and then grabbed Badial around the throat and choked him until Badial began to lose consciousness. Rendleman tried to defend Badial by striking appellant over the head with a large, 40-ounce beer bottle. This dazed appellant, and also made him angry. Appellant then proceeded to beat, kick, and "stomp" the head of Rendleman, a man of about 60, causing head and brain injuries that resulted in his death a month later.
Appellant was later arrested and interviewed by the authorities. In his voluntary statement to the police, appellant admitted fighting with the two men (Rendleman and Badial). He at first denied kicking Rendleman, but somewhat later in the interview, he admitted kicking Rendleman, though not in the head. Appellant also claimed he acted in self-defense.
The two-count information charged appellant with the murder of Rendleman (count I) and the misdemeanor battery of Badial (count II). (Pen.Code, §§ 187, subd. (a); 242) (FN2). The pleading also charged two prior serious felony convictions or "strikes," convictions of robbery in 1976 and 1983 (§§ 667, subd. (a)(1); 1170.12), and two prison term prior convictions of petty theft with a prior (§ 666) in 1992. (§ 667.5.)
FN2. All further section references are to the [California] Penal Code. Before jury selection, the court took up various motions in limine, as well as other legal matters that might arise in the course of the trial. Among the matters addressed were appellant's prior convictions, their possible use for impeachment, and whether the prior conviction allegations should be bifurcated for trial separate from the pending charges.
Defense counsel advised the court, "Mr. Winn has anticipated he would testify. And I would ask that any impeachment regarding the felonies just be the ones that are alleged in the charging document ..." (FN3). The court ruled: "There has been no motion to bifurcate, so I'll be advising the jury one of their functions would be to find, to determine whether or not the defendant is, I think there are four felonies, two 666's and two 211's."
FN3. Appellant had numerous other convictions, in addition to the four charged in the information.
Both sides were then asked to state their thoughts as to whether anything should be said about the fact that this case was being prosecuted under the three strikes law. At the urging of the prosecutor, the court ordered that no mention be made of the three strikes law before the jury.
The prosecution's first witness was Sergeant Jose Cueva, of the Solano County Sheriff's Office who, on the evening of May 28, 1999, responded to a call of an assault in progress at an apartment complex on Benicia Road, in an unincorporated area near the city of Vallejo. Cueva approached the victims' apartment. He found the door partially open, and two injured men were inside, Rendleman and Badial.
Rendleman had blood on his face and other injuries which had caused swelling in his facial area. Cueva noticed that Rendleman was attempting to stand, but he fell over. He had an obvious injury to his face which looked like the impression of the sole of a shoe, possibly the pattern of the bottom of a tennis shoe. The pattern did not match the shoes worn by Badial. Nor did Badial have any visible injury or blood on his hands. Cueva attempted to take a statement from Rendleman, but Rendleman was going in and out of consciousness and was unable to say anything coherent. Rendleman mumbled a name that sounded like "Cal Johnson" but no such person was found to exist.
Cueva detained another person who had earlier been inside the apartment, Jay King. King also had no injury to his hands, and his shoes did not match the pattern of the facial injury to Rendleman. Cueva sought to check appellant's shoes and hands, but when he arrived at the nearby apartment where appellant had been staying, appellant had left.
Susan Hogan, M.D., a forensic pathologist who performed the autopsy on Rendleman, offered that the victim had suffered numerous injuries to his face, head, and chest, consistent with being beaten and kicked. His face bore a "hexagonal waffle pattern" from the sole of a shoe, which was consistent with being "stomped." Although Rendleman suffered from cirrhosis of the liver, Hogan opined that this did not cause his death. Hogan added that persons with cirrhosis will hemorrhage more easily, but they will not spontaneously hemorrhage.
The cause of Rendleman's death was determined to be "closed head injuries due to blunt force trauma to the head." Blows administered to his head resulted in brain injuries, including bleeding and swelling, which was consistent with being kicked or "stomped" in the head, while his head was on the floor.
Solano County Deputy Sheriff Paul Jaworski accompanied Sergeant Cueva in responding to the victims' apartment on the evening of May 28, 1999, shortly after 9:00 p.m. He assessed Rendleman as "severely injured," and Badial as less seriously injured but "very upset" and "very emotional" over the injuries to his friend Rendleman. Jaworski noticed that Badial had no injuries to his hands.
Two of the guests at the apartment, Bridget Hull and Susan Reid, had earlier come over for an informal social gathering on the evening of May 28, 1999. Hull stated that the television was on, and people were sitting around talking and drinking, when a "guy outside" came into the apartment, pushing his way in even though he was told not to come in. Hull identified this intruder as appellant.
Hull overheard appellant speaking to Rendleman about something, while Badial was telling appellant to "get out" and was "clowning around" behind appellant's back, without touching him. Appellant turned on Badial and struck him in the face, then "grabbed him and pushed him on the wall and strangled him." Appellant then lifted Badial, who is a small man, off the floor and pinned him against a wall while strangling him around the neck. Badial's eyes and face began to swell as the result of appellant's stranglehold.
Rendleman, who had been sitting down, urged appellant to stop and release Badial. When appellant did not stop, Rendleman hit him over the head with a large beer bottle, which shattered. Appellant shook his head. At this point, Hull became scared and left.
Badial confirmed Hull's account of these events. Appellant entered the apartment without permission, refused to leave, and spoke with Rendleman about $8 he said he was owed. After Nunez gave appellant $5, appellant wanted more and became angry. Badial kept telling appellant to leave, but appellant punched him in the face, grabbed his neck, and began choking him. As Badial began to black out, he heard the shattering of glass, and was released. Although groggy from the experience, Badial witnessed appellant beating or punching Rendleman in the face and head. After appellant left, Badial went to the phone to dial 911, but the police had already been called.
Ed Nunez also witnessed appellant enter the apartment and Badial ordering him to leave. When appellant "picked [Badial] up by his throat," and Badial was being choked or strangled, Rendleman tried to defend his friend by striking appellant over the head with a large beer bottle. Appellant was wearing a hat which muffled the blow, but the bottle nevertheless shattered. Appellant was momentarily stunned and asked what had happened. Appellant soon began hitting Rendleman in the face and kicking him in the head, after Rendleman was knocked down. As Nunez tried to get him to stop, appellant kept "stomping" Rendleman in the head and kicking him in the side. Appellant was stomping and "grinding" his shoe into Rendleman's face. Nunez could see that Rendleman was "hurt bad" and was "gurgling" and having trouble breathing. Then Nunez left because he was scared.
Detective Eric Thelen of the Solano County Sheriff's Office was assigned to investigate the crimes. Thelen interviewed appellant on June 21, 1999, and a videotape recording and a transcript of this interview was prepared. The sound on the recording was not always audible, and therefore the videotape was played while jurors read from copies of transcripts prepared of the recording.
After waiving his Miranda rights, appellant agreed to talk about the events of May 28, 1999 (FN4). Appellant told Detective Thelen that he went to the victims' apartment to give $5 to Ed Nunez, but Badial told him to leave. Badial "grab me, spin me around like this." When appellant then grabbed Badial around the neck, Rendleman struck him over the head with a beer bottle. Appellant was stunned and tried to fight back. Then Nunez began defending appellant, by beating and stomping Rendleman, while appellant was helped out of the apartment and down the stairs by his longtime friend Linda Crawford.
FN4. Miranda v. Arizona (1966) 384 U.S. 436.
Appellant admitted hitting Badial in the face and choking him, but he at first denied kicking, or "stomping" Rendleman. Appellant blamed Rendleman's injuries on Nunez, who had earlier fought with Rendleman. Later in the interview, and after the police accused appellant of lying, appellant acknowledged that he struck Rendleman and kicked him in the chest, but denied kicking or stomping him in the head.
Following Detective Thelen's testimony, and at the close of [the] prosecution's case in chief, certified copies of abstracts of judgments and other documents relating to the four prior convictions charged in the information were offered and moved into evidence.
The defense called various witnesses to challenge the prosecution's case. Nunez was recalled to describe a fight he had with Rendleman just a few days before the May 28, 1999, incident. As Nunez explained it, the two men had been drinking.
A misunderstanding arose which resulted in both Simone Grimes and Nunez hitting Rendleman, but Nunez denied that either he or Grimes kicked Rendleman down the stairs. In response to the question, whether he recalled appellant coming up and helping Rendleman back into his apartment, Nunez answered: "I don't quite remember, but he did come in the house. He did come in the house." The next day, Nunez and Rendleman shook hands and put the misunderstanding behind them.
Simone Grimes was also inside the victims' apartment on May 28, 1999, when appellant walked in and demanded money from Rendleman. She witnessed appellant assault Badial, and Rendleman hit appellant over the head with a beer bottle. At that point, Grimes left the apartment, but soon returned to retrieve her car keys. When she returned, Grimes saw Rendleman on the floor, injured and bleeding. His face did not look as badly swollen as it did in the photographs depicting his injuries. Badial and Nunez were present in the apartment. Grimes admitted that a few days before, Rendleman said something she didn't like, so she pushed him.
Finally, appellant's longtime friend Linda Crawford testified that on the evening of May 28, 1999, she was talking with Jay King when she heard screaming and calls for help from appellant. She looked upstairs and saw appellant, who had been hit. Appellant re-entered Rendleman's apartment, and Crawford followed him inside. There she saw Rendleman standing with his fists clenched in a fighting position. Appellant started toward Rendleman, but Crawford restrained him. She then left with appellant, returning to Crawford's house. Appellant, who kept his clothes at Crawford's place, changed his clothing after the fight. Crawford believed he was wearing dress shoes, not tennis shoes, and that appellant also changed shoes at her house. Crawford did not talk to Detective Thelen when he tried to ask her about these events, because she was ill.
Detective Thelen's rebuttal testimony offered that he had repeatedly attempted to contact and interview Crawford, but she at first declined to speak with him, claiming illness. When an interview was held, Crawford advised Thelen that she was not with appellant at the apartment on the evening of the attack, and appellant only arrived at her place later in the evening.
The jury was instructed on murder in the second degree and involuntary manslaughter. Appellant was found not guilty of murder in the second degree, but guilty of involuntary manslaughter. He was sentenced to the term of 25 years to life for the felony of involuntary manslaughter, under the three strikes law, plus two consecutive one-year terms for the prison term prior convictions found true under section 667.5, for an aggregate term of 27 years to life. A concurrent six-month term for misdemeanor battery (count II) was also imposed. (Respondent's Exhibit 7, pp. 2-8.)*fn1
A. Ineffective Assistance of Counsel (Claims 1-4)
Standards for Ineffective Assistance of Counsel The test for demonstrating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness.
Id. at 688. To this end, the petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id. "We strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he 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).
Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693. 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.
In extraordinary cases, ineffective assistance of counsel claims are evaluated based on a fundamental fairness standard. Williams v. Taylor , 529 U.S. 362, 391-93 (2000), (citing Lockhart v. Fretwell, 506 U.S. 364 (1993)).
The Supreme Court has emphasized the importance of giving deference to trial counsel's decisions, especially in the AEDPA context:
In Strickland we said that "[j]udicial scrutiny of a counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 466 U.S. at 689. Thus, even when a court is presented with an ineffective-assistance claim not subject to § 2254(d)(1) deference, a [petitioner] must overcome the "presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. See Williams, supra, at 411.*fn2 Rather, he must show that the [ ]Court of Appeals applied Strickland to the facts of his case in an objectively unreasonable manner.
Bell v. Cone, 535 U.S. 685, 698-99 (2002).
Petitioner raised claim one in a habeas corpus petition filed in the California Supreme Court. (Respondent's Exhibit 13.) The California Supreme Court denied this petition without comment or citation. (Respondent's Exhibit 14.) Therefore, no state court issued a "reasoned decision" addressing this claim.
Petitioner alleges that trial counsel was ineffective by failing to adequately investigate and present exculpatory evidence of causation. Petitioner contends that had counsel conducted a proper investigation, he would have discovered that the injuries inflicted by petitioner were not the cause of death. In support of this claim, petitioner cites the report of Dr. Gregory Reiber attached to the petition as exhibit A. Petitioner seeks an evidentiary hearing to further develop Dr. Reiber's report. In support of this request, petitioner refers to his own declaration attached to the petition as exhibit B. In this declaration, petitioner states that Dr. Reiber prepared the report for petitioner pro bono and reviewed only partial records of the victim.
The undersigned first considers whether petitioner is entitled to an evidentiary hearing. Federal courts may hold evidentiary hearings in habeas actions under certain prescribed conditions:
If the applicant has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant can show that-
(A) the claim relies on(i) a new rule of constitutional law ...; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found ...