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Ortiz v. Yates

November 4, 2010

EDDIE ORTIZ, JR., PETITIONER,
v.
JAMES A. YATES, RESPONDENT.



The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Eddie Ortiz, Jr., is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that the petition be denied.

II. PROCEDURAL HISTORY

1. On June 25, 2004, Petitioner was charged with a single count of attempted murder. Lodged Doc. No. 18, Clerk's Tr. 20.

2. On May 18, 2005, Petitioner waived his right to a jury trial. Id. at 65.

3. On May 20, 2005, the bench trial began. Id. at 71.

4. On August 12, 2005, the trial court found Petitioner guilty of attempted murder as charged. Id. at 134. The trial court also found Petitioner was armed and used a firearm within the meaning of Section 12022.53(b)-(d) of the California Penal Code. Id. at 135; Lodged Doc. No. 20, Rep.'s Tr. 273.

5. On January 25, 2006, the trial court: (1) denied Petitioner's motions for a new trial and to substitute counsel; and (2) sentenced Petitioner to an aggregate term of thirty-five years to life, consisting of a midterm of seven years for attempted murder, an enhancement of twenty-five years to life under section 12202.53(d), and three one-year enhancements under section 667.5(b). Lodged Doc. No. 18, Clerk's Tr. 214-20.

A. Direct Review

1. On February 2, 2006, Petitioner filed a direct appeal in the California Court of Appeal, Third Appellate District. Id. at 221.

2. On May 2, 2007, the Court of Appeal issued a reasoned decision affirming judgment, Lodged Doc. No. 5, at 12, but remanding the case for "further proceedings to determine the truth of the prior prison term allegations and for resentencing on those allegations if they are found to be true." Id. at 11.

3. Dated May 10, 2007, Petitioner's petition for rehearing was filed in the Court of Appeal. See Lodged Doc. No. 6.

4. On May 31, 2007, the Court of Appeal issued an order modifying the opinion but denying rehearing. See Lodged Doc. No. 7.

5. Dated June 21, 2007, Petitioner's petition for review was filed in the California Supreme Court. See Lodged Doc. No. 8.

6. On August 8, 2007, the California Supreme Court denied Petitioner's petition for review without comment or citation. See Lodged Doc. No. 9.

B. State Habeas Review

1. On January 10, 2007, Petitioner filed a habeas petition in the California Court of Appeal, Third Appellate District. See Lodged Doc. No. 10.

2. On January 18, 2007, the Court of Appeal denied the habeas petition with only a citation to In re Hillery, 202 Cal. App. 2d 293, 20 Cal. Rptr. 759 (1962). See Lodged Doc. No. 11.

3. On May 15, 2007, Petitioner filed a habeas petition in the Butte County Superior Court. See Lodged Doc. No. 12.

4. On May 22, 2007, the Superior Court denied the habeas petition for three reasons: (1) undue delay; (2) failure to raise issue on appeal; and (3) issues resolved on appeal cannot be reconsidered on habeas corpus. See Lodged Doc. No. 13.

5. On July 9, 2007, Petitioner filed a habeas petition in the California Court of Appeal, Third Appellate District. See Lodged Doc. No. 14.

6. On August 16, 2007, the Court of Appeal denied the habeas petition without comment or citation. See Lodged Doc. No. 15.

7. On September 10, 2007, Petitioner filed a habeas petition in the California Supreme Court. See Lodged Doc. No. 16.

8. On April 9, 2008, the California Supreme Court denied the habeas petition without comment or citation. In re Ortiz, No. S156195, 2008 Cal. LEXIS 3973, at *1 (Cal. Apr. 9, 2008).

C. Federal Habeas Review

1. On September 3, 2008, Petitioner filed the instant federal habeas petition.

2. On November 6, 2008, Respondent filed an answer to the petition.

3. On March 5, 2009, Petitioner filed a traverse.

III. FACTUAL BACKGROUND*fn1

On New Year's Eve 2003, [Petitioner] partied at the trailer home of his girlfriend, Roxanne Peralta. When Sean DeMel arrived around 9:00 p.m. and walked into the trailer, he and [Petitioner] exchanged a few words. Peralta sensed there was tension between DeMel and [Petitioner], who walked outside onto the porch and down the stairs. DeMel followed [Petitioner], and Peralta followed DeMel. As [Petitioner] reached the bottom of the stairs, he turned around, removed a.22-caliber semiautomatic gun from a holster, pointed it at DeMel, who was standing on the porch near the top of the stairs. DeMel told [Petitioner] to "[p]ut away the gun," and they stared at each other for a couple of minutes before [Petitioner] shot DeMel in the chest. Peralta was about three feet from DeMel and about four feet from [Petitioner] when DeMel was shot. After [Petitioner] shot DeMel, he walked to a friend's car and drove away.

DeMel testified that he had seen [Petitioner] once before the night of the shooting and that nothing "unfriendly" had occurred. DeMel denied saying anything to [Petitioner] when DeMel entered the trailer. He explained that later, while [Petitioner] was on the porch and DeMel was inside the trailer, DeMel asked [Petitioner] "what was up," and [Petitioner] told DeMel to "get off [him]," i.e., "[l]eave him alone." DeMel then joined [Petitioner] on the porch and introduced himself. [Petitioner] told DeMel his name, held up a handgun, and again told DeMel to "[g]et off [him]." [Petitioner] then shot DeMel in the chest from a distance of about 20 feet.*fn2 Although the gunshot was painful, DeMel did not fall down. A friend took DeMel to Feather River Hospital, where he was flown by helicopter to Enloe Hospital. The bullet left two puncture wounds and a bullet fragment "just beneath the skin surface by about 1 cm." DeMel was kept in the hospital overnight for observation.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); see also 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Where more than one state court has adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.")). A federal habeas court looks through ambiguous or unexplained state court decisions to the last reasoned decision to determine whether that decision was contrary to, or an unreasonable application of, clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). When no state court reached the merits of a claim, the federal court must review that claim de novo. See Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005) (applying de novo standard of review to claim in habeas petition that was not adjudicated on merits by state court), cert. denied, 547 U.S. 1128 (2006); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (same); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) ("[W]hen it is clear that a state court has not reached the merits of a properly raised issue, we must review it de novo.").

V. CLAIMS FOR REVIEW

The petition for writ of habeas corpus sets forth five grounds for relief:

1. Petitioner's right to "discharge... retained counsel" and to obtain his "counsel of choice" was denied. Pet'r's Pet. 10, ECF No. 1.

2. Petitioner's trial counsel was ineffective because "trial counsel failed to subpoena alibi witness, investigate, defend against evidence, challenge I.D. issue, subpoena Lt. Phil Serna on his report of planted evidence, [which] fell below the standard... of... Strickland v. Washington, 466 U.S. 688 (1984)...." Pet'r's Pet. 2

3. Petitioner was "actually innocent," and he had "newly discovered evidence." Id.

4. Petitioner's trial counsel rendered ineffective assistance in advising Petitioner to waive his right to a jury trial and proceed by bench trial instead. Id. at 11.

5. "The evidence of G.B.I. [great bodily injury] was insufficient and the evidence of attempted murder was insufficient." Id. at 27.

Some of Petitioner's five grounds for relief overlap. To the extent possible, the grounds resolved by binding authority are grouped together. Some grounds are referenced more than once as they refer to separate issues. The remaining grounds are reviewed in seriatim. Petitioner's grounds are addressed as follows:

1. Ground One: Right to Counsel of Choice

2. Ground One: Conflict With Counsel

3. Grounds Two, Four, and Five: Ineffective Assistance of Counsel

4. Ground Three: Actual Innocence

5. Ground Five: Insufficient Evidence

For the following reasons, Petitioner's grounds do not entitle him to habeas relief.

A. Ground One: Right to Counsel of Choice

In ground one, Petitioner argues "the trial court wrongfully denied Petitioner [the right] to discharge retained counsel," Eric Ortner, violating Petitioner's "right to counsel of choice." Id. at 13. Petitioner alleges he "was forced to continue against his will for 5 months with an attorney he no longer trusted," from "June 17, 2005 of requested discharge to November 15, 2005." Id. (citations omitted). Petitioner asserts "there's no record of" his motions for a new trial and to substitute counsel. Id. at 14.

1. State Court Decision

Here, on January 10, 2007, Petitioner first raised his right to choice of counsel claim in his habeas petition filed in the California Court of Appeal. See Lodged Doc. No. 10, at 1 ("Argument") ("The failure to allow Petitioner to discharge retained counsel[] violated.... the... Sixth and Fourteenth [Amendments]."). On January 18, 2007, the Court of Appeal denied the habeas petition on procedural grounds, with only a citation to In re Hillery, 202 Cal. App. 2d 293, 20 Cal. Rptr. 759 (1962). See Lodged Doc. No. 11. In In re Hillery, the Court of Appeal held that "[t]here is no question but that this court has jurisdiction to issue the writ of habeas corpus. But this court has discretion to refuse to issue the writ as an exercise of original jurisdiction on the ground that application has not been made therefor in a lower court in the first instance." 202 Cal. App. 2d at 294, 20 Cal. Rptr. at 760.

On May 15, 2007, Petitioner raised this claim in his habeas petition filed in the Superior Court. See Lodged Doc. No. 12, at 1 ("Ground One") ("Petitioner was not allowed to discharged retained counsel, in violation of Petitioner's rights under the 6th Amendment...."). On May 22, 2007, the Superior Court issued an "Order Denying Petition or Transferring Petition," which was a checklist of reasons for denying habeas relief. See Lodged Doc. No. 13. The Superior Court marked three procedural grounds justifying denial: (1) undue delay; (2) failure to raise issue on appeal; and (3) issues resolved on appeal cannot be reconsidered on habeas corpus. Id.

Subsequently, Petitioner raised this claim in his habeas petitions filed in the Court of Appeal and California Supreme Court. See Lodged Doc. Nos. 14 and 16, at 3. Both the Court of Appeal and California Supreme Court issued decisions without comment or citation. See Lodged Doc. No. 15; In re Ortiz, 2008 Cal. LEXIS 3973, at *1.

"[T]he California Constitution provides that each of the three levels of state courts --Superior Courts, Courts of Appeal, and the Supreme Court -- has 'original jurisdiction in habeas corpus proceedings.'" Gaston v. Palmer, 387 F.3d 1004, 1010 (9th Cir. 2004) (quoting Cal. Const. art. VI, § 10), amended for other reasons by 447 F.3d 1165 (9th Cir. 2006). A California prisoner may file an original habeas petition in each of the three courts, and each court may exercise its original jurisdiction. See, e.g., In re Clark, 5 Cal. 4th 750, 760-62, 21 Cal. Rptr. 2d 509, 855 P.2d 729 (1993) (noting petitioner's first habeas application was filed in California Supreme Court). When the state's higher courts issue postcard denials, i.e., decisions without comment or citation, the Ninth Circuit construes those denials as decisions on the merits. Gaston, 387 F.3d at 1013 (citing Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 1992)); see In re Clark, 5 Cal. 4th at 769 n.9, 21 Cal. Rptr. 2d 509, 855 P.2d 729 (noting "summary denial" of state habeas petition "does not mean that the court has not considered the merits of the claims").

"State procedural bars... may expire because of later actions by state courts. If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available." Ylst, 501 U.S. at 801. "[W]hen no reasoned state court decision denying a habeas petition exists, the federal court should perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable." Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005) (per curiam).

Here, the Court of Appeal and California Supreme Court summarily denied this claim on the merits when they denied Petitioner's habeas petition without comment or citation.*fn3 Hunter, 982 F.2d at 348. These decisions removed the procedural bars applied by the Superior Court. Ylst, 501 U.S. at 801. Since no state court issued a reasoned opinion explaining its denial of this claim on the merits, "an independent review of the record" will be conducted to determine whether the California Supreme Court's decision denying this claim was contrary to, or involved an unreasonable application of, clearly established federal law. Pham, 400 F.3d at 742.

2. Analysis of Right to Counsel of Choice Claim

Petitioner fails to demonstrate a deprivation of his right to choice of counsel. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." "[A]n element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him." United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006); Wheat v. United States, 486 U.S. 153, 159, (1988).

A defendant's right to counsel of his choice, however, is not absolute. "[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat, 486 U.S. at 159. The Sixth Amendment right to choose one's own counsel is circumscribed in several important respects. Id. (giving as examples that defendant may not choose lawyer whom he cannot afford, who declines to represent him, who has conflict, or who is not member of bar). The right to select counsel of one's choice is "the right to a particular lawyer regardless of comparative effectiveness," and deprivation of the right is complete when the defendant is "erroneously prevented from being represented by the lawyer he wants." Gonzales-Lopez, 548 U.S. at 148.

Here, until the trial court allowed substitution on November 15, 2005, the record shows there was no other lawyer Petitioner wished to retain. On May 27, 2004, Petitioner "retain[ed] Eric R. Ortner to act as [his] attorney in the matter of: People v. Eddie Ortiz, Butte County Superior Court Case No[].: CM020732." Lodged Doc. No. 10, Ex. A, at 1. The bench trial began almost a year later, on May 20, 2005, and the record reveals Petitioner did not express dissatisfaction with Ortner until almost a month after that, on June 17, 2005, after presentation of evidence but before closing arguments. Lodged Doc. No. 20, Rep.'s Tr. 237. Petitioner also admits he did not "inform[] the court of the discharge of retained counsel" until June 17, 2005. See Pet'r's Pet. 13. Specifically:

1. On June 17, 2005, Petitioner attempted to address the trial court. Lodged Doc. No. 20, Rep.'s Tr. 237. The trial court suggested, "Why don't you run it by your attorney first because you never know if it will help or hurt you." Id. Petitioner responded, "There's nothing to be said. I'm dismissing him as my counsel today." Id. The trial court then held the following:

THE COURT: Hold on. I'm going to deny your request at this time. To the extent you wish to follow up on that given the fact that we've already had the trial in this matter -- we're just pending ruling, then I will -- if you want to put something in writing --perhaps that's what has been sent to me -- I don't know.*fn4 But if, after conferring with Mr. Ortner, you wish to pursue the matter, we'll do so at an appropriate time but now is not that time.

[PETITIONER]: I do have something in writing, your Honor. I have a motion for a new trial under Penal Code 1181 and 82 before judgment and -

THE COURT: Okay. Well, we haven't even had a ruling yet, so I believe that's premature. So what I would suggest sir, is that you keep those documents -

[PETITIONER]: Right.

THE COURT: -- and if appropriate they certainly will be filed at the appropriate time, and I will certainly consider them. But for the time being since I haven't even ruled -- I might find you not guilty and then there would be no need for a motion for new trial. So wait until we see what happens there.

Id. at 237-38. The June 17, 2005 hearing was adjourned to July 15, 2005. Lodged Doc. No. 18, Clerk's Tr. 77. At the time, the record does not reflect Petitioner had another attorney he wished to retain.

2. In a letter dated June 23, 2005, attached as Exhibit J to the instant petition, Petitioner informed the trial court that he was "very upset" on June 17, 2005, because Ortner was not "showing effort or applying himself to [his] case." Pet'r's Pet. Ex. J, at 47. Nothing in the letter shows Petitioner had another attorney he wished to retain.

3. On July 15, 2005, the trial court asked whether the State wanted to respond to Petitioner's two filed documents: (1) a "verdict document," Lodged Doc. No. 20, Rep.'s Tr. 240; see Lodged Doc. No. 18, Clerk's Tr. 119-22; and (2) an "argument and case authority from [Petitioner] for acquittal." Lodged Doc. No. 20, Rep.'s Tr. 240; see Lodged Doc. No. 18, Clerk's Tr. 78-122. The State asked the trial court not to read the second document because it included: (1) "an argument by [Petitioner] submitted by his attorney;" (2) "photographs;" and (3) "police report pages." Lodged Doc. No. 20, Rep.'s Tr. 240. According to the State, "none of [these] [we]re introduced in evidence at trial," so "it's an improper argument and it is improper testimony from [Petitioner]. Additionally, the evidence portion was closed." Id. The trial court stated the parties should "file everything you want to file as quickly as possible and hopefully we'll be in a position to go forward and actually resolve this matter on [August] 12th." Id. at 241. The record does not show that Petitioner tried to discharge Ortner at this time, or that Petitioner had another attorney he wished to retain.

4. On August 12, 2005, after Petitioner was found guilty of attempted murder and being armed and using a firearm, Petitioner tried to submit his motion for a new trial again. Id. at 277; see Lodged Doc. No. 18, Clerk's Tr. 135. In this motion, attached as exhibit K to the instant petition, Petitioner contends trial counsel was ineffective. Pet'r's Pet. Ex. K, at 51-52. The trial court stated:

[The motion] can't be filed at this time because for the time being Mr. Ortner is still your attorney and I believe we only allow attorneys to file documents as opposed to their client[s] but I will certainly allow to you present it to the Court and I will consider it but it will not be filed.

Lodged Doc. No. 20, Rep.'s Tr. 277. The case was adjourned to September 13, 2005 for probation/sentencing. Lodged Doc. No. 18, Clerk's Tr. 133. At this time, the record does not reveal Petitioner had another attorney he wished to retain.

5. Dated August 22, 2005, Petitioner's probation statement likewise contends his trial counsel was ineffective. Pet'r's Pet. Ex. L, at 56-59. Nothing in Petitioner's probation statement reflects Petitioner had another attorney he wished to retain.

6. At the September 13, 2005 hearing, Petitioner's appearance was waived, and the case was adjourned to October 12, 2005 for probation/sentencing. Lodged Doc. No. 18, Clerk's Tr. 143.The record does not reflect that Petitioner tried to discharge Ortner at this time, or that he had another attorney he wished to retain.

7. At the October 12, 2005 hearing, Petitioner's appearance was waived, and the case was adjourned to November 8, 2005 for probation/sentencing and Petitioner's motion for a new trial. Id. at 154. The record does not reveal that Petitioner tried to discharge Ortner at this time, or that he had another attorney he wished to retain.

8. At the November 8, 2005 appearance, the case was continued to November 15, 2005 for probation/sentencing and for Petitioner's motion for a new trial. Id. at 157.

9. On November 15, 2005, the trial court granted permission for Russell W. Miller, Jr.,*fn5 to substitute as defense counsel. Id. at 158. The case was adjourned to December 6, 2005, for probation/sentencing and Petitioner's motion for a new trial.*fn6 Id.

Since Petitioner was not "erroneously prevented from being represented by the lawyer he wants," as Petitioner had no other attorney he sought to hire, Petitioner was not deprived of a "right to a particular lawyer" of his choice. Gonzales-Lopez, 548 U.S. at 148.

To the extent Petitioner argues the trial court violated his constitutional rights by denying him a continuance to obtain new counsel, this claim also fails. The United States Supreme Court reiterated that a trial court retains "wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar." Id. at 152; see also Miller v. Blacketter, 525 F.3d 890, 895 (9th Cir. 2008). "As such, trial courts retain the discretion to 'make scheduling and other decisions that effectively exclude a defendant's first choice of counsel.'" Miller, 525 F.3d at 895 (quoting Gonzalez-Lopez, 548 U.S. at 152).

In evaluating a similar habeas claim, the Ninth Circuit considered three factors: (1) whether the defendant had retained new counsel; (2) whether current counsel was prepared and competent to proceed forward; and (3) the timing of defendant's request to continue. Id. at 896-98. In Miller, the court denied a habeas petition alleging a violation of the right to counsel where: (1) the petitioner requested the continuance the morning that trial was scheduled to begin; (2) the petitioner had not yet retained a lawyer; and (3) his appointed lawyer was prepared to represent him. Id. The same analysis dictates the same result here.

First, in the instant case, as in Miller, the record does not show Petitioner had retained new counsel when he sought to "dismiss[]" Ortner. Lodged Doc. No. 20, Rep.'s Tr. 237. There is no evidence that Petitioner had hired a new attorney who was willing and able to proceed with the trial. The first factor does not support Petitioner's claim. Id.

Second, in both the instant case and Miller, the existing lawyer was ready and able to represent Petitioner. On June 2, 2005, "the evidence part of the trial" was concluded, and because the case involved a bench trial and "not... a jury," the trial court had "the luxury of time" and allowed briefing on several issues. Id. at 226. At the following appearance, on June 17, 2005, although counsel were "unable to get their briefs in," id. at 233, Ortner explained Petitioner "believe[d] that there's evidence that has been overlooked... [and] needs to be brought to the Court's attention." Id. Ortner stated:

I would ask that this matter be set on July 15th, and I would ask that sufficient time be set aside on July 15th to deal with any eventuality that may arise in [Petitioner]'s case between now and then. And I will address those concerns with him and, as appropriate, bring that to the attention of [the State] and will address all of those matters on July 15th."

Id. at 234. The trial court granted this request.*fn7 Id. at 238. The second factor also does not support Petitioner's claim.

Third, Petitioner's request is untimely. On June 17, 2005, Petitioner first sought to "dismiss[]" Ortner in court, almost a month after the bench trial began, after presentation of evidence, but before closing arguments. Id. at 237. After the trial court denied Petitioner's dismissal "at this time," the trial court mentioned Petitioner may "put something in writing." Id. In a letter dated June 23, 2005, Petitioner followed up with a letter to the trial court alleging Ortner "has failed by ineffective assistance of counsel." Pet'r's Pet. Ex. J, at 79. Petitioner did not express dissatisfaction again until August 12, 2005, after he was found guilty of attempted murder and being armed and using a firearm, Lodged Doc. No. 20, Rep.'s Tr. 277, and once more, in his probation statement dated August 22, 2005. Pet'r's Pet. Ex. L, at 56-59.

"[U]nder the law of th[e] [Ninth] [C]circuit, 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." Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990); Hudson v. Rushen, 686 F.2d 826, 832 (9th Cir. 1982), cert. denied, 461 U.S. 916 (1983). In between Petitioner's expressions of dissatisfaction, nothing in the record indicates Petitioner tried to retain new counsel, and Petitioner does not justify the timing of his requests. The third factor weighs against Petitioner's claim.

In sum, "only [a trial court's] unreasonable and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay violates the Sixth Amendment." Miller, 525 F.3d at 897 (quoting Morris v. Slappy, 461 U.S. 1, 11-12 (1983)). Given all of the facts of this case, the trial court's decision to deny Petitioner's request to "dismiss[]" Ortner, or what may be interpreted as Petitioner's requests for continuances to obtain new counsel, was neither arbitrary nor unreasonable. Morris, 461 U.S. at 12-14 (holding defendant's Sixth Amendment rights were not violated where trial court refused to continue trial to permit defendant's preferred public defender to represent him); Miller, 525 F.3d at 895-98 (finding no violation of right to counsel where trial court denied continuance requested morning of trial and new counsel had not yet been retained); Bradley v. Henry, 510 F.3d 1093, 1100 (9th Cir. 2007) (determining trial court "may deny motion to substitute retained counsel if there is a substantial risk that the delay will result in an undue delay of the proceedings"). Petitioner is not entitled to habeas relief on his right to choice of counsel claim.

B. Ground One: Conflict With Counsel

In ground one, Petitioner argues that the trial court violated his constitutional rights by not permitting Petitioner to discharge his counsel until November 15, 2005, where there was an "irreconcilable conflict" and a "strained communication breakdown." Pet'r's Pet. 13.

1. State Court Decision

Petitioner's conflict with counsel claim follows the same procedural history as Petitioner's right to choice of counsel claim. See supra Part V.A.1; see also Lodged Doc. No. 10, at 2 ("Statement of Facts") (showing in Court of Appeal habeas petition, "Petitioner did inform the court on said date of his desire to dismiss retained counsel (Eric R. Ortner)... due to irreconcilable [sic] conflict"); Lodged Doc. No. 11 (Court of Appeal decision); Lodged. Doc. No. 12, at 1 ("Ground One") (Superior Court habeas petition); Lodged Doc. No. 13 (Superior Court decision);Lodged Doc. No. 14, at 3 (Court of Appeal habeas petition); Lodged Doc. No. 15 (Court of Appeal decision); Lodged Doc. No. 16, at 3 (California Supreme Court habeas petition); In re Ortiz, 2008 Cal. LEXIS 3973, at *1 (California Supreme Court decision). Since Petitioner's conflict with counsel claim was never discussed in a reasoned state court opinion, "an independent review of the record" will be conducted to determine whether the California Supreme Court's denial of this claim was contrary to, or involved an unreasonable application of, clearly established federal law. Pham, 400 F.3d at 742.

2. Analysis of Conflict with Counsel Claim

Here, Petitioner does not establish that his lawyer had an actual conflict of interest. The Sixth Amendment provides a defendant with the right to be represented by an attorney who does not have an actual conflict of interest. See Holloway v. Arkansas, 435 U.S. 475, 483-84 (1978) (finding representation by one attorney of several co-defendants violates Sixth Amendment if it presents actual conflict of interest). Petitioner had no co-defendants, and there is no evidence that counsel previously represented another client whose representation conflicted with his representation of Petitioner. Similarly, there is no evidence that any aspect of the individual lawyer created an actual conflict. Plumlee v. Masto, 512 F.3d 1204, 121 (9th Cir. 2008) (noting issue is whether there is actual, legal conflict).

Additionally, Petitioner never raised an actual conflict issue during the proceedings, nor would the judge know or reasonably know of any actual, legal conflict. See Lockhart v. Terhune, 250 F.3d 1223, 1229-30 (9th Cir. 2001) (summarizing Supreme Court decisions holding, inter alia, that if "the court knows or reasonably should know that a particular conflict exists[,] it must initiate an inquiry about that conflict" (citation and internal quotation marks omitted)). When Petitioner expressed dissatisfaction with his attorney, he alleged counsel rendered ineffective assistance, not that counsel had an actual, legal conflict. See, e.g., Pet'r's Pet. Ex. J, at 47.

To the extent Petitioner argues his distrust of his attorney created a conflict requiring new counsel, the law does not support his argument. In Morris, the Supreme Court held that the Sixth Amendment did not guarantee "a meaningful relationship between an accused and his counsel." 461 U.S. at 13-14. In interpreting this holding, the Ninth Circuit recently rejected a similar habeas petitioner's argument, finding no constitutional violation where the petitioner was "represented by a lawyer free of actual conflicts of interest, but with whom the defendant refuses to cooperate because of dislike or distrust." Plumlee, 512 F.3d at 1211. Petitioner's conflict of counsel claim fails.

C. Grounds Two, Four, and Five: Ineffective Assistance of Counsel

In grounds two, four, and five, Petitioner asserts his trial attorney rendered ineffective assistance based on a number of prejudicial errors. After exhaustion is addressed and the legal standard is set forth, the alleged prejudicial errors resolved by binding authority are grouped together and are reviewed as follows: (1) failure to subpoena Lieutenant Phil Serna; (2) failure to subpoena and investigate Deborah Farris; (3) failure to subpoena or investigate Don Ryan; (4) failure to call Eric Vierra as a witness; (5) failure to subpoena and investigate medical personnel; (6) failure to investigate "Tyson;" (7) failure to challenge Officer Paul Hegenbart's testimony; (8) counsel's contradiction during trial; (9) failure to challenge Roxanne Peralta's testimony; (10) failure to challenge Detective Jason Imboden's testimony; (11) failure to challenge Bill Dunn's testimony; (12) advising Petitioner to waive his right to a jury trial; and (13) failure to object to "the judge and deputy dist. attorney[']s self medical analysis of what [great bodily injury] is." Pet'r's Pet. 15-21, 28.

1. Exhaustion

Here, Petitioner raised the first,*fn8 second,*fn9 third,*fn10 fourth,*fn11 fifth,*fn12 and twelfth*fn13 alleged prejudicial errors, as numbered above, in all of his state habeas petitions. Petitioner failed to raise the remaining alleged errors in direct review or in any of his state habeas petitions.*fn14

Compare Pet'r's Pet. 13, 15-21, 24, 28, with Lodged Doc No. 10, at 1 ("Argument")-5 ("Argument") (January 10, 2007 Court of Appeal habeas petition), Lodged Doc. No. 12, at 1 ("Ground One"), 1 ("Ground Two")-2 ("Ground Two"), 1 ("Ground Three")-2 ("Ground Three"), 1 ("Ground Four")-4 ("Ground Four") (May 15, 2007 Superior Court habeas petition), Lodged Doc. No. 14, at 3-5 (July 9, 2007 Court of Appeal habeas petition), and Lodged Doc. No. 16, at 3-5 (September 10, 2007 California Supreme Court habeas petition). Because exhaustion is a procedural defect that could prevent consideration of any of the claims in the current petition, Rose v. Lundy, 455 U.S. 509, 522 (1982) ("[W]e hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims."), the exhaustion issue is addressed prior to addressing any claim of prejudicial error.

a. Legal Standard for Exhaustion

"Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the 'opportunity to pass upon and correct' alleged violations of prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)). "The state courts have been given a sufficient opportunity to hear an issue when the petitioner has presented the state court with the issue's factual and legal basis." Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (citing Duncan, 513 U.S. at 365 (legal basis); Correll v. Stewart, 137 F.3d 1404, 1411-12 (9th Cir. 1998) (factual basis)). "A petitioner has satisfied the exhaustion requirement if: (1) he has 'fairly presented' his federal claim to the highest state court with jurisdiction to consider it,... or (2) he demonstrates that no state remedy remains available." Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted).

To have exhausted via the first avenue, a petitioner must have presented each federal claim as a federal claim to the California Supreme Court on (1) direct review (e.g., in a petition for review); or (2) collateral review (e.g., in a petition for a writ of habeas corpus). See Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir. 1986); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1990); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) ("To 'fairly present' [a] federal claim to the state courts, [a petitioner] had to alert the state courts to the fact that he was asserting a claim under the United States Constitution." (citing Duncan, 513 U.S. at 365-66)). A "mere similarity between a claim of state and federal error is insufficient to establish exhaustion." Duncan, 513 U.S. at 366.

A claim is considered exhausted via the second avenue "'if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law.'" Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (quoting Castille v. Peoples, 489 U.S. 346, 351 (1989)); see also Valerio v. Dir. of the Dep't of Prisons, 306 F.3d 742, 770 (9th Cir. 2002) ("[T]he claim is exhausted because it is procedurally barred."). A claim is also "exhausted because a return to state court for exhaustion would be futile." Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) (citation and internal quotation marks omitted).

b. Analysis of Exhaustion

In the instant case, Petitioner exhausted the first, second, third, fourth, fifth, and twelfth claims of prejudicial error because the California Supreme Court reviewed them in a habeas petition. Johnson, 88 F.3d at 829. Since these claims were never discussed in a reasoned state court opinion, "an independent review of the record" will be conducted to determine whether the California Supreme Court's decision to deny these claims was contrary to, or involved an unreasonable application of, clearly established federal law. Pham, 400 F.3d at 742.

Petitioner, however, did not raise the remaining claims of prejudicial error in any state court. These remaining claims are either: (1) unexhausted because no state court reviewed them, Johnson, 88 F.3d at 829; or (2) exhausted because they are procedurally barred. Phillips, 267 F.3d at 974 ("The district court correctly concluded that [the] claims were nonetheless exhausted because 'a return to state court for exhaustion would be futile.'") (citation omitted); see infra Part V.C.3.f-k, m (finding alleged errors meritless).

Even if Petitioner's claims are unexhausted, an application for a writ of habeas corpus may be denied on the merits, notwithstanding the applicant's failure to exhaust available state remedies. 28 U.S.C. § 2254(b)(2). A federal court considering a habeas petition may deny an unexhausted claim on the merits when it is perfectly clear that the claim is not "colorable." Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). The merits of Petitioner's remaining claims of prejudicial error will be addressed, and this matter is now ready for decision.

2. Legal Standard for Ineffective Assistance of Counsel Claims

The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court sets forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). An allegation of ineffective assistance of counsel requires that a petitioner establish two elements: (1) counsel's performance was deficient; and (2) the petitioner was prejudiced by the deficiency. Id. at 687; Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).

First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. To this end, a 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 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 ...


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