FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1999 conviction on five counts of robbery in violation of California Penal Code § 211, one count of false imprisonment in violation of California Penal Code § 236, with enhancements for personal use of a handgun in violation of Cal. Penal Code 12022.53(b) and 12022.5(a). This action is proceeding on five claims for relief raised in petitioner's original petition.*fn1
Early in the morning on June 3, 1998, a group of men wearing dark clothing and masks came in through the front door of the Silver Fox Casino. The victims identified the intruders as Asian by their accents and size. One victim recognized an intruder speaking in Vietnamese and using the name "Bao."
Upon entering, the men ordered the victims to the floor. Some victims recalled a suspect pointing his gun in the air and clicking it twice without gunfire. From the floor, victims were led to the card room. The robbers took money and wallets from the victims. Two victims testified to feeling a gun pressed behind their head or back. After having property taken, the victims were forced into the women's restroom.
While the victims were being moved and robbed, a suspect forced the casino shift manager, David Tran, into the "cage" to get the cashier money. When Tran stated he did not know where the rest of the money was, the suspect pointed a gun at him and kicked him in the back. An additional suspect broke the window to the casino office. A total of $31,400 in cash was taken from the casino. In addition, paychecks from the casino to Sandra Woodsworth, a robbery victim, were taken from the office.
After the robbery, the casino owner named an ex-employee, Thanh Do ("Andy") as a likely suspect to the robbery. The next day a stolen car containing blood, masks, and gloves was found three blocks north of the casino.
On August 25, 1998, police discovered guns at the home of Minh Nguyen, a felon, during an unrelated search. Minh, thinking that he was in trouble for the gun possession, gave the officers formation about the robbery. He testified that there were multiple meetings to plan the robbery. [Petitioner] was present at these meetings. Minh identified Thanh Do ("Andy"), Johnny Nguyen ("Johnny"), and [petitioner] as involved in the robbery. Minh's information took police to Andy and Johnny's homes, leading to their arrest.
The police then discovered that the blood at the casino and in the stolen car matched Johnny's blood type and markings. This blood type is present in only two to three percent of Asian males. Johnny also had lacerations on his hands, consistent with an injury from the broken window. Minh could only identify [petitioner] by his nickname "Henry." However, Minh did take police to [petitioner]'s home. He also informed police that [petitioner] had taken a trip to Vietnam after the robbery.
A search of [petitioner]'s room on September 1, 1998, produced incriminating evidence. Police recovered a white garbage bag with blood on it. The bag was similar to the moneybag used in the robbery. Additionally, police found ledgers with blood on them and the casino checks to Sandra Woodsworth in [petitioner]'s room. [Petitioner] was arrested two days later in San Francisco.
Johnny Nguyen testified about numerous meetings at which plans to rob the casino were made. [Petitioner] was present at each meeting except the first. The final meeting occurred at a motel the night before the robbery. Johnny named [petitioner], himself, and two other individuals, Bao and Duong, as participants in the robbery. According to Johnny, Bao, Duong, and [petitioner] carried guns. Johnny cut the phone lines and broke the office window, on which he cut his fingers. [Petitioner] took the shift manager into the "cage" to get the cashier money. Bao and Duong moved the victims into the restroom.
Johnny testified that after the robbery the four of them drove in a stolen car to Bao's car where the dropped off Bao and [petitioner] (who had the money). Then Duong and Johnny drove to Johnny's car and took it back to the motel. About an hour later Johnny, Bao, Duong, Andy, and [petitioner] met at [petitioner]'s house to split the money. They received about $5600 each.
Minh's testimony confirmed [petitioner]'s presence at the meetings to plan the robbery. Additionally, Minh testified that [petitioner] was at the motel the night before the robbery. After the robbery, defendant, Johnny, and Andy came over to Minh's house. Minh went out with [petitioner]later that night. The guns were eventually brought back to Minh.
Prior to [petitioner]'s testimony, defense counsel met with the trial judge ex parte without the [petitioner] present to discuss an "ethical conflict." Defense counsel felt that [petitioner] was going to present perjurious testimony. Upon questioning from the judge, counsel indicated he had warned [petitioner] that perjury is a crime that poses strategic risks and advised him to testify truthfully. Counsel also indicated he did not file a motion to withdraw and felt he could continue to represent [petitioner]. The court agreed with defense counsel that [petitioner] should present his testimony in a narrative manner.
In his testimony, [petitioner] described himself as a full-time student who likes to go out with his friends. He described Johnny and Minh as gang members. Though [petitioner] said he was not a gang member himself, it was stipulated in rebuttal that a deputy sheriff would testify that [petitioner] stated he was a member of the "TL" (Tenderloin) gang from San Francisco when questioned about housing assignments in the jail. [Petitioner] admitted he heard conversations about the robbery on numerous occasions but dismissed the plans as a display to impress girls. According to the [petitioner], the day before the robbery Minh borrowed $100 to get a motel room to drink beer and invite girls over. Later that evening Minh told [petitioner] Andy had already rented a motel room. [Petitioner] was disappointed to find there were no girls present at the motel and left after one beer. He testified the others discussed the casino robbery at the motel. He left the motel to go to karaoke at "Keyholes," where he met his friend Justin and some girls.
[Petitioner] testified Minh, Johnny, Andy, and Duong arrived at his house the next morning to clean their guns and count their money. Johnny was bleeding. [Petitioner] watched television while the others were in his room and went back to sleep once they left. Minh offered defendant $400 but defendant only accepted the $100 Minh owed him. [Petitioner] cleaned the trash from his room and checked to make sure there was no blood in the house.
Weeks after the robbery Johnny, Johnny's girlfriend, and [petitioner] went to Vietnam together. [Petitioner] estimated that he spent about $4000 there, $2000 of which he claimed was from his sister. His sister corroborated this but had no receipts to show she had given [petitioner] any money. In addition to the trip, [petitioner] brought a pager, a "fake" Movado watch, and spent $775 in car repairs after the robbery. When he went to Vietnam [petitioner] was behind on his rent. He claimed to have paid the landlord's wife but this was contradicted by a stipulation.
People v. Nguyen, slip op. at 2-6.
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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 412; see also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. See Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Federal courts must presume that state court's factual findings are correct unless defendant rebuts this presumption with clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). Where a state court has not reached the merits of a petitioner's claim, the AEDPA's deferential standard in § 2254(d) does not apply and a federal habeas court must review the claim de novo. See Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
A. Disclosure of Potential Perjury
Petitioner's first claim for relief is that his rights under the Confrontation Clause of the Sixth Amendment, the Due Process Clause of the Fourteenth Amendment, as well as his Sixth Amendment right to counsel were violated in connection with an in camera meeting between the trial court and petitioner's counsel held without petitioner present. Petitioner's second claim is that his trial counsel provided ineffective assistance by discussing with the trial court at that in camera meeting "his belief that petitioner intended to perjure himself without possessing a firm factual basis for that belief." Petition, filed December 30, 2002, at 17. The last reasoned state court rejection of these claims is the decision of the Sacramento County Superior Court on a petition for writ of habeas corpus filed by petitioner in that court. The state superior court denied the claims as follows:
Claims that could have been raised on appeal are not grounds for relief unless the petitioner can show that (1) clear and fundamental constitutional error strikes at the heart of the trial process; (2) the court lacked fundamental jurisdiction; (3) the court acted in excess of jurisdiction; or (4) a change in law after the appeal affected the petition. (In re Dixon (1953) 41 Cal.2d 756, 759; In re Harris (1993) 5 Cal.4th 813, 828.) Generally, claims of ineffective assistance of counsel are not barred by the above doctrine. (See In re Robbins (1998) 18 Cal.4th 770, 814, fn. 34.)
Both of Petitioner's claims could have been raised on appeal as they related solely to conduct occurring during trial. Petitioner attempts to support his claim with trial transcripts. Although claims of ineffective assistance of counsel normally are not raised on appeal because they relate to conduct not reflected in the record, in this case all of the conduct complained of appeared in the record. As such, the claim of ineffective assistance of trial counsel should have been raised on appeal, as is true of the claim that Petitioner was improperly excluded from an ex parte hearing. Since they were not raised on direct appeal and relate solely to evidence in the record, they are barred.....
Petitioner states that the issues were not raised on appeal because appellate counsel failed to raise them. To the extent the petitioner alleges ineffective assistance of appellate counsel, Petitioner did not and cannot show prejudice, i.e., that had appellate counsel included the claims in the appeal, there is a reasonable probability that the result would have been different. Petitioner cites primarily two cases to support his claim. He analogizes his case to People v. Ebert (1988) 199 Cal.App.3d 40 for the proposition that he was wrongfully excluded from the ex parte hearing between counsel and the court about his potentially perjurious testimony. Ebert, however, is distinguishable because the defendant in that case was proceeding in pro per and advisory counsel was allowed to withdraw following the ex parte hearing, leaving the defendant -- who had not been given proper Faretta warnings -- unrepresented. Here, Petitioner was not representing himself and his attorney did not seek to withdraw; therefore, he was not unrepresented. Similarly, Petitioner cites Lowery v. Cardwell (1978) 575 F.2d 727 (9th Cir.) to support his claim that his attorney's actions caused a conflict of interest. In Lowery, the attorney sought to withdraw for undisclosed reason, indicating to the court -- the trier of fact -- that the attorney believed the defendant was lying. Unlike Lowery, trial counsel in this case explained that he thought Petitioner would commit perjury to the trial court, not to the jury. In addition, counsel did not seek to withdraw, but rather stated that he had warned Petitioner that perjury was a crime and advised Petitioner to testify truthfully, and felt that he could continue to represent Petition. Counsel had a duty not to elicit perjury; Petitioner has failed to show that counsel's conduct was improper or that the claim likely would have resulted in a reversal of his conviction.
In re Hung Phouc Nguyen, Case No. 01F09943 (Jan. 9, 2002). Respondents contend that these claims are barred by the doctrine of procedural default. In the alternative, respondents contend that the claims are without merit.
Respondents contend that these claims are barred by the doctrine of procedural default because the Sacramento County Superior Court rejected the claim with a citation to In re Dixon, 41 Cal.2d 756 (1953). Where, as here, the state court's citation to Dixon includes reference to the constitutional error exception, application of the Dixon rule does not bar federal review of petitioner's claims. See Park v. California, 202 F.3d 1146, 1153 (9th Cir. 2000).
Petitioner's claims arise from the following facts. Trial commenced on February 23, 1999. Reporter's Transcript on Appeal (RT), Vol I. Jury selection was completed on March 1, 1999, and the prosecution's case in chief started on the same day. Id. At the start of the afternoon session on March 1, 1999, the court dismissed the jury until the next day. Id. at 74. Thereafter, the court took up a few matters with the prosecutor, Mr. Durenberger, and defense counsel, Mr. Salinger. Id. at 74-78. At the conclusion of those matters, the court held a conference with defense counsel to discuss an issue defense counsel had raised with the court ex parte. Id. at 78. Neither petitioner nor the prosecutor were present during the conference. Id. Prior to the conference, the following statements were made on the record, in petitioner's presence:
THE COURT: Okay. Mr. Salinger, I need to discuss with you the issue you raised ex parte. I think Mr. Durenberger is leaving the courtroom, and I do not plan to discuss the merits of the case with you, only your professional responsibilities with your client, for the record.
MR. SALINGER: Thank you. With that, perhaps I'll leave it there and make a record about what I'd like to discuss with you.
MR. DURENBERGER: Your Honor, I just received a page, I think it's from my detective, about one of the witnesses, so if I could just take it in back?
THE COURT: Would you close the ...