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Smith v. Adams

September 3, 2010

FREE ODELL SMITH, PETITIONER,
v.
DERRAL ADAMS, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction for second degree murder. The jury further found that petitioner personally discharged a firearm causing great bodily injury. Petitioner is serving a sentence of 40 years to life.

This action is proceeding on the amended petition filed March 9, 2010. (Dkt. 43.) After carefully reviewing the record, the undersigned recommends that the petition be denied.

II. Anti-Terrorism and Effective Death Penalty Act ("AEDPA")

In Williams (Terry) v. Taylor, 529 U.S. 362 (2000), the Supreme Court defined the operative review standard in a habeas corpus action brought pursuant to 28 U.S.C. § 2254. 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 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).

III. Background

The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein:

On the morning of February 21, 2004, Scott Appleby, defendant's business partner in a mobile auto repair business, was sleeping in one of defendant's cars parked on Odea Drive in Sacramento. Around 5:30 a.m., Appleby was awoken by the sound of someone starting and stealing defendant's Chevrolet Caprice Classic, which was parked directly behind the car in which Appleby was sleeping. Appleby saw three cars in the vicinity at the time of the theft, including a 1969 white Mercury Cougar. Appleby informed defendant of the theft and gave him descriptions of the cars.

The following afternoon, Appleby was on Odea Drive, working on a car owned by "T-Max," when defendant arrived driving an El Camino. While defendant was still in the vicinity talking to T-Max, Appleby saw the same white Mercury Cougar he had seen during the car theft drive by and go around the corner. Appleby told another friend named Nick Costello and Costello went to tell defendant. Appleby then saw defendant, T-Max, and Costello jog to the corner and back.

Defendant then went to his El Camino, retrieved an SKS assault rifle from the trunk, walked out into the street and approached the driver's side window of the Cougar, which was now driving back down Odea Drive. Defendant then, without saying a word, fired four or five rounds into the Cougar, from only two feet away. Defendant and T-Max left in defendant's El Camino.

Christopher Navarro, the driver of the Cougar, was killed. Michelle Toney, the passenger in the Cougar, was not seriously injured. Toney was scared, had focused on the gun, and had ducked down inside the car when she saw the shooter, so she could not provide a very detailed description. Toney described the shooter as an African-American male, dressed in black with a black hood over his head, and some braids or dreadlocks protruding from edges of the hood and reaching down below his neckline.

The day after the shooting, Appleby contacted police and identified defendant as the shooter. He also told the district attorney investigator where to find the buried casings. Describing defendant to police, Appleby said defendant had short, kinky hair. A booking photograph of defendant, taken a month after the shooting, however, showed defendant with curls down to his shoulders.

Defendant told police that he did not think he was on Odea Drive the day of the shooting and denied ever owning an El Camino. Costello, however, confirmed that defendant was present on Odea Drive, driving an El Camino, on the afternoon of the shooting and was there right before the shooting. Department of Motor Vehicle records confirmed that an El Camino was sold to defendant on February 1, 2004.

Respondent's Lodged Document 4, pp. 2-4.

IV. Discussion

A. Claim One: Denial of Pre-Trial Marsden Motion

Petitioner alleges that the trial court improperly denied his November 30, 2004 Marsden*fn1 motion. Petitioner also argues that the trial court did not adequately question his counsel during the hearing on this motion.

Procedural Default

Respondent argues that claim one is procedurally defaulted. Respondent contends that petitioner raised this claim in his habeas petition filed in the California Supreme Court, which the California Supreme denied by order citing In re Robbins, 18 Cal.4th 770, 780 (1998), In re Clark, 5 Cal.4th 750 (1993), and In re Swain, 34 Cal.2d 300, 304 (1949). (Respondent's Lodged Document 14.)

Petitioner also raised this claim on direct appeal. The California Court of Appeal issued an opinion addressing the merits of this claim. (Respondent's Lodged Document 2.) The California Supreme Court denied petitioner's petition for review, which raised this claim, by an order citing no cases. (Respondent's Lodged Documents 3, 4.) Therefore, the California Supreme Court denied this claim on the merits.*fn2 Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005), citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (where more than one state court has adjudicated petitioner's claims, a federal habeas court analyzes the last reasoned decision; later unexplained orders, upholding a judgment or rejecting the same claim, rests upon the same ground as the prior order).

Petitioner has not defaulted on claim one because, in denying the petition for review, the California Supreme Court considered this claim on the merits. A claim cannot be defaulted when it was previously denied on the merits. Accordingly, respondent's argument that claim one is procedurally barred is without merit.

Legal Standard

Denial of a motion pursuant to People v. Marsden may implicate the Sixth Amendment right to counsel. Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir. 2000) (en banc).

Therefore, when a criminal defendant makes a request for substitution of counsel, the trial court is constitutionally required to inquire into the defendant's reasons for wanting a new attorney. Schell, 218 F.3d at 1025 ("[I]t is well established and clear that the Sixth Amendment requires on the record an appropriate inquiry into the grounds for such a motion, and that the matter be resolved on the merits before the case goes forward."); see also Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007) ("A trial court's inquiry regarding counsel's performance on a motion to substitute counsel should be such necessary inquiry as might ease the defendant's dissatisfaction, distrust and concern.") (citation and internal quotation marks omitted). For an indigent defendant, such an inquiry can serve to protect against constitutional injury because the failure to provide substitute counsel "may result in a denial of the constitutional right to effective assistance of counsel if the defendant and his attorney are embroiled in an 'irreconcilable conflict.'" United States v. Mills, 597 F.2d 693, 700 (9th Cir. 1979) (internal citations omitted).

In reviewing a federal habeas claim based on the denial of a substitution motion, "the ultimate constitutional question the federal courts must answer" is whether the state trial court's disposition of the motion violated a petitioner's constitutional rights because the conflict between the petitioner and appointed counsel "had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Schell, 218 F.3d at 1026. If the reviewing court determines that a conflict developed between the petitioner and appointed counsel so serious that it "resulted in the constructive denial of assistance of counsel, no further showing of prejudice is required." Schell, 218 F.3d at 1027-28 (citing Strickland v. Washington, 466 U.S. 668, 692 (1984)). On the other hand, "not every conflict or disagreement between the defendant and counsel implicates Sixth Amendment rights." Schell, 218 F.3d at 1027 (citing Morris v. Slappy, 461 U.S. 1, 13-14 (1983) (holding that the Sixth Amendment does not guarantee a "meaningful relationship" between defendant and counsel)); see also Stenson, 504 F.3d at 886 ("An irreconcilable conflict in violation of the Sixth Amendment occurs only where there is a complete breakdown in communication between the attorney and client, and the breakdown prevents effective assistance of counsel. Disagreements over strategic or tactical decisions do not rise to [the] level of a complete breakdown in communication.")

As explained by the Ninth Circuit:

The test for determining whether the trial judge should have granted a substitution motion is the same as the test for determining whether an irreconcilable conflict existed. The court must consider: (1) the extent of the conflict; (2) whether the trial judge made an appropriate inquiry into the extent of the conflict; and (3) the timeliness of the motion to substitute counsel.

Daniels v. Woodford, 428 F.3d 1181, 1197-98 (9th Cir. 2005) (citations omitted).

Analysis

The undersigned will first summarize the Marsden hearing. (Respondent's Lodged Document 16, volume II.)

The trial court began the hearing by asking petitioner how his counsel had not properly represented him. (Id. at 4.) Petitioner responded that trial counsel wanted to pursue an imperfect self defense, which involved him admitting that he was present at the scene. (Id.) Petitioner objected to such a defense because he was not present at the crime scene and was innocent. (Id.) Petitioner also complained that he had not received all discovery from trial counsel. (Id. at 5.) Petitioner stated that he had not been allowed to fully watch the tapes and videotapes of witnesses. (Id.) Petitioner also complained that there had been no motions filed in his case. (Id.) Petitioner claimed that his lawyer had not obtained statements from the witnesses, the district attorney or police. (Id.)

In response, trial counsel stated that he had discussed possible defenses with petitioner. (Id. at 6-7.) Trial counsel stated that he told petitioner that he did not want to create a false defense, "but I indicated that it appeared to me that the only possible defense in this case was an imperfect self-defense given the facts of this case." (Id. at 7.)

I've indicated that to him twice, mainly because he insists on asking me what our defense is going to be. Every time I've--especially the last time that I mentioned that possibility to him, he got very upset with me. Consequently, I indicated to him that I would do whatever he thinks needs to be done in this case. But, of course, we have no witnesses.

(Id.)

When asked by the trial court if petitioner had provided trial counsel with the names of any witnesses, trial counsel responded,

Yes, Your Honor, and I have contacted what would have been a critical witness in this case, but that person totally destroyed any possible defenses that we may have had by utilizing that person. And he insisted that we--and when I say "we," I mean myself and my investigator--that we speak to that person, and we did. We spoke to that person at least three times that I'm aware of. And every time we spoke to that person, that person would not assist us in any manner that would, in fact, hurt our case even more. So besides that, that person we really had--have no other witnesses

(Id.)

Trial counsel told the court that although petitioner insisted that he had not viewed all the tapes, it was his understanding from his investigator that petitioner had viewed the tapes. (Id. at 8.) Trial counsel stated that he had given petitioner all of the reports and "everything that I have." (Id. at 9.) Regarding his failure to make any motions, trial counsel stated that he was going to make some motions regarding jury selection and the impeachment of witnesses. (Id.) However, trial counsel was not aware of any other pretrial motions he could have made. (Id. at 9-10.)

Regarding his relationship with petitioner, trial counsel stated, Well, I'm beginning to feel that's true, especially in my last couple of visits with Mr. Smith. I've detected in him total mistrust, um, and maybe some other feelings that I'm not going to put on the record. But, basically, I really think that, given his attitude, on the last couple of occasion[s] that we have met, it appears that--it does appear that there's no communications with Mr. Smith. I'm not going to get any assistance form him.

I'm just hoping that if the Court doesn't grant his motion, that I'm just hoping that everything will proceed in a smooth way. But, basically, I really think the communications have broken down. Mr. Smith doesn't trust me now at all. I think that Mr. Smith feels that if the outcome is unfavorable in this case, that it's due to the fact that, you know, we've not really communicated, and that we're sort of worlds apart concerning the presentation of this case.

(Id. at 10.)

The trial court then asked counsel if the prosecution's case would be stronger against petitioner if he called the witness who petitioner wanted him to call. (Id.) Trial counsel responded, "Most definitely." (Id.) Trial counsel then told the judge,

But, um, the problem is not so much that now, the problem is that to be frank with you, you know, if it were up to me, I would--I would indicate that another attorney should take over this case, you know, another attorney that Mr. Smith may feel more comfortable with.

(Id. at 11.)

Petitioner then told the court that the witness counsel was referring to was his girlfriend. (Id. at 12.) Petitioner stated that he wanted counsel to question her again because she told "them" that he was with her at the time of the shooting. (Id. at 12-13.)

The trial court went on to deny petitioner's Marsden motion: Well, having heard both Mr. Mayorga and Mr. Smith, I do find that Mr. Mayorga has properly represented you. He has questioned a witness that you indicated he should question. He didn't do it once, he did it three times. Mr. Mayorga has read all the discovery in this case. He's reviewed it. He's reviewed possible defenses.

To the extent that there is a personality conflict between the two people, I do not believe that it is such that it is a complete breakdown or a breakdown in the relationship of such a degree that it would make it impossible for Mr. Mayorga to properly represent Mr. Smith. To the extent that there are conflicts between the statements made this morning, I do believe Mr. Mayorga. I do believe that he has not only properly represented you Mr. Smith, but will continue to properly represent him in this case. And so the motion is denied. (Id. at 15-16.)

The California Court of Appeal denied the instant claim for the reasons stated herein:

Prior to trial, defendant made a Marsden motion seeking new trial counsel, claiming his counsel was not adequately representing him. Defendant contends the trial court prejudicially erred in denying his motion. He contends the testimony at the pre-trial Marsden hearing established that there had been "an irreconcilable breakdown in the attorney-client relationship." We find no error.

We review this claim under a settled standard. "[S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]." (People v. Smith (1993) 6 Cal.4th 684, 696.) To the extent there is a credibility question between defendant and counsel, the court is entitled to accept counsel's explanation. (Id. at p. 696.) "Moreover, a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict." (Id. at pp. 696-697.)

We review the claim of erroneous denial of a Marsden motion under the deferential abuse of discretion standard. (People v. Earp (1999) 20 Cal.4th 826, 876.) "'Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel.' [Citations.]" (People v. Hart (1999) 20 Cal.4th 546, 603.)

We agree with the trial court that defendant failed to carry his burden of showing such an irreconcilable conflict that ineffective representation is likely to result. Defendant complained that he wanted to present the defense that he was not the shooter and was not even present at the crime scene. Counsel responded that, on at least three occasions, he and his investigator spoke with the witness defendant claimed supported this defense, but the witness "totally destroyed any possible defenses" that defendant may have had. Accordingly, the only possible defense in counsel's professional judgment, given the facts of the case, was imperfect self-defense. Counsel had explained this to defendant and defendant had become angry.

Defendant's complaint did not warrant the appointment of new counsel. A conflict over the tactical decisions or the trial strategy to pursue does not constitute the type of "irreconcilable conflict" that indicates that counsel's representation has become inadequate. (People v. Welch (1999) 20 Cal.4th 701, 728-729.) When counsel represents a defendant, counsel is the "captain of the ship" and can make all but the most fundamental decisions for his client. (Id. at p. 729.)

Defendant also complained that he had not received and reviewed all the discovery and his attorney had not filed any motions, and in particular, a section 995 motion. Counsel responded that his investigator viewed all the relevant tapes with defendant and counsel had provided defendant with copies of all the written discovery. The trial court expressly stated it found counsel's statements credible. Counsel also stated that a section 995 motion was not available in this case and there were no other appropriate pretrial motions to be made. Counsel did intend, as the court was aware, to file certain motions regarding jury selection and a motion in limine regarding witness impeachment. But there were no other appropriate motions available.

Defendant also complained that he did not feel comfortable with his attorney, that he did not have a good "gut feeling," and that they did not have any relationship whatsoever. When asked to comment on defendant's statement that they had no relationship, counsel stated that he was "beginning to feel that that's true, especially in my last couple of visits." Counsel said defendant did not appear to trust him at all and that, given defendant's attitude, counsel did not think he was going to get any assistance from him. Accordingly, counsel stated that defendant might be better off with another attorney with whom defendant felt more comfortable.

A defendant, however, "cannot simply refuse to cooperate with his appointed attorney and thereby compel the court to remove that attorney. '"[I]f a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.'" (People v. Michaels (2002) 28 Cal.4th 486, 523.) Here, the "conflict" consisted primarily of disagreement over tactics and defendant's belief that counsel had not provided him discovery or made appropriate motions (which the trial court rejected as unsubstantiated), neither of which is sufficient to establish a fatal conflict and compel the substitution of counsel.

Finally, defendant complained that counsel did not have statements from all the witnesses from whom the district attorney had taken statements. Counsel explained that they had tapes of all the interviews. Counsel had also tried to interview a young boy who was a witness and had given a statement to the police, but the boy's mother refused to allow counsel to speak to the boy and refused to permit the boy to testify. Counsel noted, however, that this was to defendant's advantage since the boy's testimony would be harmful to defendant's case.

In sum, the record does not demonstrate that defendant's attorney was not providing effective representation or that defendant and his attorney had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result. Thus, the trial court did not abuse its discretion in concluding that defendant had not shown that a failure to replace defendant's counsel would substantially impair defendant's right to the effective assistance of counsel.

(Respondent's Lodged Document 2, pp. 4-8.)

At the outset, the undersigned finds that the trial court's inquiry was adequate. A trial court's inquiry regarding counsel's performance on a motion to substitute counsel should be "such necessary inquiry as might ease the defendant's dissatisfaction, distrust, and concern." United States v. Garcia, 924 F.2d 925, 926 (9th Cir. 1991) (internal quotation marks and citation omitted). It also should provide a "sufficient basis for reaching an informed decision[ ]" regarding whether to appoint new counsel. United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986). The trial court gave petitioner adequate opportunity to discuss his grievances. The trial court also gave trial counsel an adequate opportunity to respond. Accordingly, petitioner's claim that the trial court's inquiry was inadequate is without merit.

The California Court of Appeal's denial of petitioner's claim challenging the trial court's denial of his motion for substitute counsel was not an unreasonable application of clearly established Supreme Court authority. Petitioner first objected to trial counsel's continued representation because he would not pursue the alibi defense petitioner requested. However, trial counsel told the court that there was no basis for this alibi defense. Trial counsel stated that on three occasions he had questioned petitioner's girlfriend, who petitioner claim would have provided his alibi, but she apparently was unable to assist in this defense. In fact, trial counsel told the court that if she testified, it would help the prosecution. Petitioner's disagreement with trial counsel over tactical decisions within the sphere of counsel's professional judgment did not entitle him to new counsel. Schell v. Witek, 218 F.3d at 1026.

Petitioner's request for new counsel based on trial counsel's failure to provide him with records and the opportunity to review the tapes was not supported by the record.

Finally, although trial counsel expressed concern based on petitioner's failure to cooperate with him, the conflict was of petitioner's own making based on his refusal to accept counsel's professional opinion that the only viable defense was imperfect self-defense. This disagreement did not amount to a denial of petitioner's Sixth Amendment rights. Schell, 218 F.3d at 1026; see also Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc) ("[W]e are not aware of any [Supreme Court case] that stands for the proposition that the Sixth Amendment is violated when a defendant is represented by a lawyer free of actual conflicts of interest, but with whom the defendant refuses to cooperate because of dislike or distrust.").*fn3

As stated above, the denial of this claim by the California Court of Appeal was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.

B. Claim Two: Failure to Conduct Marsden Hearing Post-Verdict Procedural Default

Respondent argues that this claim is procedurally defaulted on the same grounds as claim one. Like claim one, claim two was raised on direct appeal where, for the reasons discussed above, it was denied on the merits by both the California Court of Appeal and California Supreme Court. (Respondent's Lodged Documents 2-4). For the reasons discussed above, respondent's argument that claim two is procedurally barred is without merit.

Analysis

At the beginning of the sentencing hearing on January 10, 2005, petitioner told the court that he would, "like to request a lawyer to determine if my--if my lawyer--if my lawyer was ineffective and to file a new trial motion for new trial." (Respondent's Lodged Document 16, Volume I at 226.) The trial court then asked petitioner what the grounds of his new trial motion would be. (Id.) Petitioner responded that the grounds of his new trial motion would be ineffective assistance of counsel based on the claims raised at the earlier Marsden motion. (Id.) Petitioner went on to argue that if counsel had conducted an adequate investigation, "he would have found out that there were another witness that described the shooter as a light skin complected with long hair with small beard that coincided with the witness Michelle Toney's testimony--description of the shooter." (Id. at 227.) Petitioner also argued that counsel was ineffective for failing to present evidence that Scott Appleby had been incarcerated in an insane asylum for the attempted murder of his wife. (Id.)

The trial court then denied his motion for a new trial and for appointment of substitute counsel: "Based on applicable case law, the Court denies your motion for a new trial. I also decline to appoint an attorney to represent you at this time." (Id.)

The California Court of Appeal denied this claim for the reasons stated herein: Defendant also contends the trial court erred in failing to conduct a post-verdict Marsden hearing when defendant requested new counsel be appointed for the purpose of making a motion for a new trial based on ineffective assistance of trial counsel. Alternatively, he contends the trial court erred in not appointing new counsel to prepare and file a new trial motion. We disagree with both contentions. When a defendant requests substitution of new counsel after trial in order to assist in the preparation of a motion for new trial based on the inadequacy of trial counsel, the court must, as a preliminary matter, elicit from defendant the reasons he believes he was inadequately represented at trial. (People v. Stewart (1985) 171 Cal.App.3d 388, 395, disapproved on other grounds in People v. Smith, supra, 6 Cal.4th 684, 694-696.) This can be done in camera or in open court. (People v. Winbush (1988) 205 Cal.App.3d 987, 991.) "Once a trial judge is informed of the facts underlying a defendant's claim of inadequate assistance, he [or she] is then in a position to intelligently determine whether he [or she] may fairly rule on the defendant's motion for a new trial, or whether new counsel should be appointed to more fully develop the claim of inadequate representation." (People v. Stewart, supra, 171 Cal.App.3d at pp. 395-396.)

Here, contrary to defendant's assertion on appeal, the trial court did permit defendant to set forth the reasons he believed new counsel and a new trial were warranted. Upon defendant's request for a new attorney to bring a new trial motion, the trial court asked him: "What would the basis of your new trial motion be, sir?"

Defendant began by rehashing the complaints against counsel he had raised at the pre-trial Marsden hearing. In addition to those complaints, defendant also complained that counsel did not investigate or present evidence at trial that "Appleby had been incarcerated in the insane asylum for the mentally disturbed for the attempted murder of his wife." He believed such evidence would have impeached Appleby's testimony. Defendant also insisted that there was another eyewitness who would provide a physical description of the shooter as having a light complexion, long hair and a small beard--a description that coincided with Toney's description of the shooter as having long braids or curls and contradicted Appleby's description of defendant as having short, kinky hair. He claimed his counsel was ineffective for not investigating this witness and that it was a basis for a new trial.

The trial court then ruled as follows: "Based on applicable case law, the Court denies your motion for new trial. I also decline to appoint an attorney to represent you at this time."

Although conducted in open court, the trial court adequately permitted defendant to state the grounds upon which he believed a new trial motion should be granted. The trial court's denial of defendant's Marsden motion was also proper, as defendant failed to present any grounds warranting further action by the court. Trial counsel had already refuted most of defendant's claims during the pre-trial Marsden hearing. Defendant's added claim that counsel was ineffective for failing to pursue evidence of Appleby's alleged incarceration in a mental health facility did not require the appointment of new counsel to prepare and file a motion for new trial. In order to prevail on a motion for new trial based on ineffective assistance of counsel, "defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant in the sense that it 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" (People v. Andrade (2000) 79 Cal.App.4th 651, 659-660, quoting Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 692-693].) Appleby's numerous prior convictions were discussed prior to trial. Defense counsel made a successful motion in limine permitting impeachment of Appleby with several of those prior convictions. Defendant's accusation that counsel was ineffective for failing to pursue Appleby's alleged incarceration in a mental health facility did not make a colorable claim that counsel's performance was deficient. At best, it was merely speculative information of marginal relevance and questionable admissibility. Accordingly, the trial court properly refused to appoint new counsel to bring a new trial motion for that purpose.

Likewise, defendant's claim that counsel was ineffective and a new trial was required because counsel did not investigate another eyewitness who would provide a physical description of the shooter as having long hair lacked merit. This alleged evidence did not support defendant's allegation of ineffective representation or his request for a new trial. In fact, it would have been further identification evidence supporting the People's case.

The witness defendant claims his counsel should have investigated would, according to defendant, state that the shooter had long hair and a small beard. This description coincided with Toney's description of the shooter as having long braids or curls and contradicted Appleby's description of defendant as having short, kinky hair. Defendant appears to believe this evidence would have been helpful in discrediting Appleby's testimony.

Appleby's description of defendant to the investigating officer as having very short, kinky hair, however, had already been thoroughly discredited by the evidence. At trial, Appleby testified that he had never seen defendant's hair because defendant always wore a hat or a wrap. Moreover, a booking photograph of defendant taken only one month after the shooting depicted defendant with curls down to his shoulders. Thus, the booking photograph showed that defendant resembled Toney's description of the shooter as having long braids or curls. Testimony from another witness that the shooter had long hair would not have assisted defendant in any way.

When a defendant's claim of ineffective assistance of counsel relates to courtroom events observed by the trial court, the trial court is generally able to resolve the new trial motion without appointing new counsel. (People v. Smith, supra, 6 Cal.4th 684, 692.) But even when the claim relates to matters outside the courtroom, the defendant must make a colorable claim of inadequacy of counsel before the court may, in its discretion, appoint new counsel to assist in moving for a new trial. (Id. at p. 693; see People v. Diaz (1992) 3 Cal.4th 495, 573-574.) New counsel should not be appointed without a proper showing. (People v. Smith, supra, 6 Cal.4th 684, 696.)

Here, defendant did not make the requisite showing. We find no abuse of discretion in the trial court's refusal to appoint new counsel to explore defendant's claims in inadequate representation.

(Respondent's Lodged Document 2, pp. 8-12.)

The Sixth and Fourteenth Amendments guarantee an individual brought to criminal trial in state or federal court the right to assistance of counsel. Faretta v. California, 422 U.S. 806, 807 (1975). A trial is unfair if an accused individual is denied counsel at a critical stage of his trial. United States v. Cronic, 466 U.S. 648, 659 (1984). The Ninth Circuit has long held that "there can be little question that the motion for a new trial under California law is a critical stage of the prosecution." Menefield v. Borg, 881 F.2d 696, 699 (9th Cir. 1989). Thus, criminal defendants are entitled to the assistance of competent counsel at a motion for a new trial. Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990) (citing Menefield v. Borg, 881 F.2d at 699). "Counsel" may be either trial counsel or substitute counsel appointed for purposes of hearing the new trial motion. Jackson, supra, 881 F.2d at 888. "There is no automatic right to a substitution of counsel simply because the defendant informs the trial court that he is dissatisfied with appointed counsel's performance." Id. However, "a trial judge is required to order a substitution of counsel if, after a hearing, it is demonstrated that there is a breakdown in the attorney-client relationship or that an actual conflict of interest existed." Id., citing Wood v. Georgia, 450 U.S. 261, 273-74 (1981). "Holding a hearing to review a defendant's... claim insures that the trial is fundamentally fair." Id.

In the instant case, when petitioner asked for new counsel to be appointed so that he could make a new trial motion based on ineffective assistance of counsel, the trial court asked petitioner to describe the grounds of the new trial motion. Petitioner described the grounds of his new trial motion as being the same as his pre-trial Marsden motion. Petitioner also raised new claims of ineffective assistance based on counsel's failure to discover a witness who would have provided a physical description of the shooter consistent with Toney's description as well as counsel's failure to impeach Appleby with his previous incarceration in an insane asylum.

Although the trial court did not conduct a Marsden hearing, it gave petitioner an adequate opportunity to set forth the grounds of the new trial motion. Based on the reasoning of the California Court of Appeal, the undersigned finds that the trial court's denial of the new trial motion was proper. First, trial counsel had already refuted most of petitioner's claims during the pre-trial Marsden hearing. Regarding Appleby's prior incarceration in a mental hospital, the California Court of Appeal observed that defense counsel had successfully moved to impeach Appleby with several prior convictions. Additional impeachment evidence of Appleby based on his previous incarceration in a mental hospital would not likely have changed the outcome of the case. In addition, as noted by the California Court of Appeal, it was "merely speculative information of marginal relevance and questionable admissibility." Regarding petitioner's claim that counsel failed to investigate a witness who would testify that the shooter had long hair, the California Court of Appeal noted that this evidence would have supported the People's case.

Because petitioners motion for a new trial was without merit, the trial court did not err in failing to hold a formal Marsden hearing where trial counsel could have addressed petitioner's new claims of ineffective assistance. The trial court was not required to conduct a Marsden hearing to determine whether new counsel should be appointed a criminal defendant in a new trial motion that it found meritless.

Moreover, the grounds of the new trial motion were the same as the grounds of petitioner's motion for substitute counsel. The trial court had already rejected the majority of these grounds in its previous order denying petitioner's Marsden motion discussed above. For the reasons stated by the California Court of Appeal, the record did not support the two new claims raised by petitioner in support of his motion for substitute counsel to represent him on his new trial motion. For these reasons, the trial court's inquiry into the grounds of petitioner's request for substitute counsel was adequate. The trial court's denial of petitioner's motion for substitute counsel was appropriate because petitioner did not present an adequate conflict with counsel.

The denial of this claim by the California Court of Appeal was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.

C. Claim Three: Trial Court Refused to Allow Petitioner to File Motions for New Trial

Procedural Default

Respondent argues that this claim is procedurally defaulted on the same grounds as claim one. Like claims one and two, claim three was raised on direct appeal where, for the reasons discussed above, it was denied on the merits by both the California Court of Appeal and California Supreme Court. (Respondent's Lodged Documents 2-4). For the reasons discussed above, respondent's argument that claim three is procedurally barred is without merit.

Analysis

Petitioner alleges that the trial court violated his constitutional rights by refusing to allow him to "go pro per" and proceed with two new trial motions. Petitioner is challenging the trial court's refusal to grant him a continuance to file his pro per motion for a new trial after it denied his motion for motion a new trial discussed in claim two above:

Court: Based on the applicable law, the Court denies your motion for a new trial. I also decline to appoint an attorney to represent you at this time. You obviously will have an opportunity to have a lawyer appointed to you free of charge for your appeal.

Petitioner: Okay. Since I don't have a motion--an attorney to file a new trial motion, I would like to go pro per and file my own motion.

Court: Well, you can go ahead and do that, sir, but I'm not going to delay judgment and sentence for that purpose. Based on what you indicated to this Court, I see no legal basis by which you have any chance of challenge--what you're seeking to challenge by way of a new trial motion.

On the other hand, you will have an opportunity through court-appointed attorney to appeal not only the sentence that will be imposed today, but everything and anything that occurred during the course of the trial or any other proceeding in your case.

Petitioner: Well, I would like to submit a writ of mandate to--for stay of sentence until appeal can be--could--your appeal ruling could be discussed or looked over ...


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