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Byron Eugene Johnson v. D.L. Runnels

December 13, 2010


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


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 2001 conviction for corporal injury on a cohabitant with an enhancement for inflicting great bodily injury on the victim. Pursuant to the Three Strikes Law, petitioner is serving a sentence of twenty-five years to life.

This action is proceeding on the amended petition filed October 3, 2005. (Dkt. No. 14). The amended petition raises the following claims: 1) ineffective assistance of counsel;

2) prosecutorial misconduct; 3) ineffective assistance of appellate counsel; 4) sentencing error. Petitioner also raises a claim alleging that the prosecutor committed misconduct by removing an African-American juror. Petitioner inadvertently left this claim out of the amended petition, but it has now been fully briefed. (Dkt. Nos. 57, 62.)

After carefully considering 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

Respondent's answer contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein.

On June 30, 2001, victim Sonya Bennett lived in a residence at 3317 10th Avenue, Sacramento with petitioner, who was her boyfriend, and her roommate, Alvin Mayo. (RT at 338-40.)

At 3:38 p.m., a 911 call was received from the victim's residence. The caller, who identified herself as the victim's sister, "Roberta," told 911 that the victim's boyfriend, "Eugene," had hit the victim in the head with a bottle. The caller indicated that the person who had "assaulted" the victim had left. (Id., at 409).*fn1

Sacramento Police Officer Justin Johnson arrived at the residence and found the victim on the ground bleeding. The victim told him that "nothing" had happened and yelled at other people in the residence not to talk to the police. (Id., at 410-11.) Officer Johnson observed blood and glass in a back bedroom. Based on the size and smell it was giving off, Officer Johnson believed the glass came from a forty ounce beer bottle. (Id., at 416-17.) A crime scene investigator observed glass shards on the floor of the bedroom and thought that one piece looked like it could be the bottom of a bottle. (Id., at 310-11,319-20.)

Sacramento Police Officer Michelle Beattie arrived between 4:00 and 4:15 p.m. and observed that there "was blood all over the hallways, the walls, one of the back bedrooms, into the bathroom, broken glass on the bedroom floor." (Id., at 329-31.)

Mayo, the victim's roommate, initially told the police that he had not seen the incident and did not know what happened. (Id., at 123.) However, when the police returned later that evening, Mayo told them that he had awakened to a lot of mayhem and the sound of a male saying, "see what you made me do." (Id., at 124, 331.)

At trial, Mayo testified that he had been asleep in his bedroom when he was awakened by a commotion, shouting and the sound of someone bumping against the wall. (Id., at 118-19, 154.) Mayo recognized one of the voices as belonging to the victim's sister, Percilla Rubit. (Id., at 119, 241.) Mayo claimed that he came out of the bedroom and saw "a bunch of women" gathered around the victim. (Id., at 119.) The victim was sitting on the floor, leaning against a wall. She was bleeding profusely from her neck, and Percilla was holding a towel to the wound. (Id., at 120.) Mayo testified that the women asked him to go to the corner to see if petitioner was present. Mayo walked to the corner of 33rd Street and 10th Avenue and saw petitioner leaning into a police car near the Oak Park Market on 12th Avenue.*fn2 (Id., at 121-22.)
Mayo's testimony then began to differ from what he had told the police on the day of the incident. Mayo claimed that he suffers from Post Traumatic Syndrome as a result of his service in Vietnam and that he was under several medications, including anti-depressants and sleep aids, on the day of the incident. (Id., at 124-25.) Mayo claimed that he told the police officers on the day of the incident about his use of medications and noted that he had gone to the district attorney's office on August 13 and informed a representative of the district attorney's office that he could not remember what he heard on the day of the incident because of his use of the medications.*fn3 (Id., at 125-26, 129.)

When questioned whether he had spoken to petitioner since the incident, Mayo acknowledged that he had spoken to petitioner on the telephone a "couple times" but claimed that they had not talked about the case. (Id., at 127.) When pressed, Mayo acknowledged that he had engaged in one conversation with petitioner about the incident, and they had discussed what Mayo had seen or heard. (Id., at 127-28.)

The prosecution then played for Mayo and the jury a tape recording of a conversation that had taken place between Mayo and petitioner approximately two days before Mayo spoke to the district attorney's representative. (Id., at 128-29.) In the conversation, petitioner told Mayo that he had heard that some people were "running their mouths" and that he had learned that Mayo had claimed to have overheard the statement from petitioner, "look what you made me do." Petitioner told Mayo that he (petitioner) had not been at the scene of the incident, and Mayo replied, "O.K." Petitioner also advised Mayo that he expected to get out of jail and be home on the following Tuesday. (People's Exhibit 3.)

Mayo testified at trial that he did not feel threatened as a result of the conversation and that he went to the district attorney's office two days thereafter only to make sure they understood that he was on medication. (RT at 129-30.) At the same time, Mayo acknowledged that on July 5, 2001, he had called 911 to report a threat by petitioner because he felt intimidated. (Id., at 130, 151-52.) Moreover, Mayo testified that he had received "possibly one or two" more threats in connection with his testimony. (Id., at 153.) Finally, Mayo acknowledged that he did not want to testify and was there only under subpoena. (Id., at 131.)

Mayo then confirmed that on the day of the incident, he believed he heard a male voice say, "see what you made me do" and then, "leave me alone." (Id., at 131-32.)

The victim's fourteen-year-old son, Jerry Shaver, lived with his father across the street from the victim.*fn4 (Id., at 114-15, 157-58.) On the day of the incident, Shaver had been to his mother's house and had seen petitioner and his mother drinking out of a large glass beer bottle. (Id., at 163-64.) Shaver returned to his father's house, and approximately five to eight minutes later, returned to his mother's house. (Id., at 164.) As he approached the front door of the house, petitioner passed by him and appeared intoxicated.*fn5 (Id., at 161, 164.) When Shaver entered his mother's house, his aunts, Percilla Rubit, Roberta and Jetty,*fn6 were screaming, and his mother was on the ground bleeding. (Id., at 164-65, 179.) Shaver got a towel from his mother and then ran back outside and went down the street and asked petitioner why he had hit his mother.*fn7 (Id., at 168-69.) Petitioner replied that he had not meant to do anything and that the victim had smashed his finger in the door. (Id., at 169.) Shaver then flagged down the police who put petitioner in the back of a car and returned to the victim's house. (Id., at 170.)

Shaver testified that petitioner and his mother commonly argued when they were intoxicated. (Id., at 171.) Matters sometimes became physical, and Shaver had seen petitioner hit his mother and had seen his mother throw something at petitioner. On some occasions, Shaver or his sister had called the police. (Id., at 171-73.)

Dr. Robert Oliver, the emergency room physician who treated the victim, testified that by the time the victim reached the hospital, her injuries were dangerous. She had lost a lot of blood and Dr. Oliver called in a surgeon to treat a penetrating injury to her neck. (Id., at 198-201.) When Dr. Oliver asked the victim how she had sustained her injuries, she replied that her boyfriend had struck her with a bottle.*fn8 (Id., at 206.)

Dr. Oliver testified that the victim's injuries were inconsistent with someone falling onto a broken glass, bottle or jar. (Id., at 212.) Instead, the injuries indicated "this was a forward motion of a piece of glass that was already broken, such as an individual holding a bottleneck of the bottle broken off and going in a forward motion." *fn9 (Id., at 228.)

Elizabeth Garcia, a supervisor of the emergency department where the victim was admitted, took a history from the victim and asked how she had sustained her injuries. The victim replied that her boyfriend had caused them. (Id., at 233.)

Percilla Rubit, the victim's sister, testified that at the time of the incident she and a woman named Lynn were in the living room and the victim and petitioner were arguing in the bedroom. During that time, petitioner had a forty ounce bottle of beer. (Id., at 254-55.) Percilla testified that she then suddenly "heard a pow" which sounded like a beer bottle shattering and then "a little bit later my sister came out, fell on the floor and a little bit after that Eugene looked at my sister and held his hands up and said 'f' it, 'f' it. Then he left the house." (Id., at 254, 258.)

Percilla testified that the victim had asked her not to come to court and testify, or to invoke the Fifth Amendment. (Id., at 299.) The victim also asked her on several occasions to change her story so that petitioner would not get in trouble. (Id., at 300.)

Percilla acknowledged that she had seen petitioner hit the victim in the past. (Id., at 265.)

The victim, Sonya Bennett, testified at trial that the injuries she sustained occurred when she fell in her bedroom after dropping a pickle jar from which she had been drinking.*fn10 (Id., at 357-63.) She acknowledged that petitioner had been at her house on the morning of the incident but claimed that he was not present at the time she sustained her injuries.*fn11 She further claimed that the only persons she could recall being present at the time the injuries occurred were Percilla, who was in the living room, and possibly Mayo.*fn12 (Id., at 340, 363.)

The victim acknowledged that she and her sister had been drinking on the day of the incident. The victim thought she had consumed "maybe two or three six packs and probably a bottle -- maybe some wine." (Id., at 357-58.) She claimed that she did not begin drinking until 6 p.m. When confronted with the fact that the police had responded to the incident at approximately 4 p.m., the victim showed great confusion. (Id., at 343-44.)

The victim testified that she did not recall having told the doctor at the hospital that her boyfriend had inflicted the injuries on her. Instead, the victim indicated that she believed she had told the doctor to get her boyfriend. (Id., at 346.) The prosecution then played for the jury a tape of a telephone conversation from the jail in which petitioner suggested to the victim the very thing to which she had testified, i.e. that when the victim made the statements to the doctor, it "could have been [the victim] calling out for [petitioner]." (Id., at 346-48; Exhibit 2.) The victim denied the conversation was the genesis for her testimony. (RT at 347.)

The victim acknowledged having visited petitioner in jail on at least thirty occasions and having participated in at least sixty telephone conversations with him.*fn13 (Id., at 346.) When asked whether any of the telephone conversations with petitioner had been about the case, the victim responded, Well, I don't think -- maybe if I did -- I can't remember because I believe I had already talked to him. He already knew I think probably from only one of my family members that I had slip and fell because he wasn't even there that night, sir.

(Id., at 352.)*fn14

When asked whether she had ever talked to petitioner about what Mayo had seen on the day of the incident, the victim claimed she had never had any such conversation. (Id., at 354.) An audiotape of a telephone conversation was then played for the jury in which petitioner told the victim that he had "figured out what happened." Petitioner then suggested that Mayo had "thought" he heard the things he claimed to have heard, but that Mayo had been waking up from his psychotropic drugs. Petitioner further suggested that he (petitioner) had been at the market when the incident occurred and had come home only to find the victim injured.*fn15 (Exhibit9.)

The victim also denied that she had ever talked with petitioner about the testimony of Percilla. (RT at 358.) The prosecutor then played for the jury the tape of a telephone conversation in which petitioner told the victim that he had spoken to his public defender and learned that Percilla "has got to be got to" and needs to "change her tune." (Exhibit6.) The victim then claimed that she recalled the conversation but that she never talked to Percilla. (RT at 359.) The victim also claimed not able to recall having ever told her sister not to come to court and testify. (Id., at 350-51.)

The victim claimed that if she told people on the day of the incident not to talk to police, it was because she was embarrassed that she had been drinking and had drugs in her system. (Id., at 350-51.)

The victim also denied that on July 6, 2000, she had called 911 regarding another incident in which she reported that petitioner had hit her three times in the head. When confronted with a police report about the incident, the victim claimed she didn't think she had reported such an incident. She then claimed not to have any recollection of the matter. (Id., at 365.)

Sacramento Police Officer Jason Collins testified that on July 6, 2000, he responded to a domestic violence call in which the victim alleged that petitioner had hit her with his fists on each side of her head and in her mouth. The victim had a swollen lower lip and complained of pain to both of her ears. (Id., at 404-05.)

Timony Sardelich, an identification technician for the Sacramento Police Department, testified that he was sent to the victim's residence on July 6, 2000, to take pictures of injuries the victim had sustained in a domestic violence incident. However, the victim refused to be photographed. (Id., at 326-28.)

IV. Discussion A. Claim 1 -- Alleged Ineffective Assistance of Counsel Petitioner raises several claims of alleged ineffective assistance of counsel.

Legal Standard The test for demonstrating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 688. To this end, the petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id. "We strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).

Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.

In extraordinary cases, ineffective assistance of counsel claims are evaluated based on a fundamental fairness standard. Williams v. Taylor , 529 U.S. 362, 391-93 (2000) (citing Lockhart v. Fretwell, 506 U.S. 364 (1993)).

The Supreme Court has emphasized the importance of giving deference to trial counsel's decisions, especially in the AEDPA context:

In Strickland we said that "[j]udicial scrutiny of a counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 466 U.S. at 689. Thus, even when a court is presented with an ineffective-assistance claim not subject to § 2254(d)(1) deference, a [petitioner] must overcome the "presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. See Williams, supra, at 411.*fn16 Rather, he must show that the [ ]Court of Appeals applied Strickland to the facts of his case in an objectively unreasonable manner. Bell v. Cone, 535 U.S. 685, 698-99 (2002).

Failure to Subpoena Witnesses

Petitioner argues that his counsel was ineffective for failing to call three witnesses who could have testified on his behalf. In particular, petitioner argues that trial counsel should have called 1) the manager of Food King; 2) Sonya Bennett's nephew, Stevie; and 3) petitioner's grandmother. (Dkt. 14, at 52-53 of 107.) Petitioner does not offer any declarations by these individuals in support of this claim. Rather, he appears to rely on his own declaration attached as an exhibit to the amended petition. (Dkt. 14-1, at 67-123 of 140.)

In his declaration, petitioner states that shortly after 10:00 a.m. on June 30, 2001, he left the house he shared with Bennett and went to his grandmother's house. (Id., at 67.) After checking on his grandmother, he returned to Bennett's house at around 12:50 p.m. (Id., at 68.) Between 2:00 and 3:00 p.m., Rubit arrived at the house. (Id.) Some time, later, petitioner left to go to Food King Supermarket. (Id., at 70.) As petitioner left the house, he saw Bennett's nephew, Stevie. (Id., at 71.) Petitioner was gone for approximately 30-35 minutes. (Id.) When he returned to Bennett's house he saw Rubit on the floor. (Id., at 72.) Rubit was apparently helping Bennett. Rubit would not let him help Bennett, who was injured. (Id., at 73.) Petitioner then went to the Oak Park Market to call 911. (Id.)

This claim of alleged ineffective assistance of counsel is unsupported because petitioner did not provide declarations by the three people he claims counsel should have called as witnesses. The court has no way of knowing whether these three people would have testified as petitioner claims they would have in his self-serving declaration. Moreover, considering the strength of the evidence against petitioner, including the victim's statements to Dr. Oliver and Nurse Garcia that petitioner inflicted the injuries, it is highly unlikely that the outcome of the trial would have been different had these witnesses testified. For these reasons, this claim of ineffective assistance of counsel is without merit.

Cross-Examination of Rubit

Citing page 297 of the reporter's transcript, petitioner contends that during trial counsel's cross-examination of Rubit, she testified that she did not see petitioner with a broken bottle in his hand. (Dkt. 14, at 55.) Citing page 538 of the reporter's transcript, petitioner argues that during closing argument, trial counsel was ineffective for arguing that Rubit saw him with a broken bottle. (Id.)

Petitioner is correct that on cross-examination, Rubit testified that she did not see petitioner with a broken bottle. (RT, at 297.) While Rubit testified that she saw petitioner go into the bedroom holding a beer bottle, she testified that she did not see him come out of the room holding a broken beer bottle. (Id.) Petitioner is correct that during closing argument, trial counsel erroneously stated that Rubit testified that she saw petitioner holding a broken beer bottle:

What was the effect of these phone calls? Well, if there were threats to Miss Rubit they must not have been too threatening because she came in and testified and she testified similarly to what she testified to before, that she had seen Byron at the end of the hall and then he came out with a broken bottle. Didn't change her testimony a bit. (RT, at 538.)

Because the evidence against petitioner was very strong, it is unlikely that counsel's misstatement of Rubit's testimony during closing argument affected the outcome of the trial. Moreover, the jury was instructed that statements made by the attorneys during the trial were not evidence. (CT at 224.) See Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the "almost invariable assumption of the law that jurors follow their instructions"). For these reasons, this claim of alleged ineffective assistance of counsel is without merit.

Counsel's statement: "If it don't fit, you must acquit."

Petitioner argues that trial counsel was ineffective for stating, as he was putting on gloves to handle a piece of glass removed from the victim's neck, "If it don't fit, you must acquit." (Dkt. 14, at 56-57.) Petitioner argues that after this statement was made, everyone in the court room except petitioner laughed. (Id.) Petitioner argues that this statement, taken from the infamous O.J. Simpson trial, inflamed the jury against petitioner. (Id.) Petitioner appears to argue that this comment was not recorded by the court reporter as it is not found in the reporter's transcript. (Id.)

Assuming counsel made this comment, it is not likely that it impacted the outcome of the trial. Considering the context in which the statement was allegedly made, the undersigned does not find that it was particularly prejudicial to petitioner. In any event, considering the strong evidence against petitioner, it is not likely that the jury was impacted by this single comment. Moreover, as stated above, the jury was instructed that statements made by the attorneys during the trial were not evidence. (CT at 224.) For these reasons, this claim of alleged ineffective assistance of counsel is without merit.

Failure to Obtain Glass

Petitioner argues that his trial counsel was ineffective for failing to obtain the glass which Crime Scene Investigator ("CSI") Freschette photographed but failed to collect. (Dkt. No. 14, at 57-58.) Petitioner argues that his counsel should have argued that with no preservation of the glass from the floor, there was no conclusive evidence as to whether the glass was from a 40 ounce beer bottle or the glass that the victim claimed she was drinking out of that she subsequently dropped then fell on. (Id.)

Bennett's claim that the injuries were caused when she fell on a broken pickle jar was not supported by the evidence. She told Dr. Oliver and Nurse Garcia that petitioner caused her injuries. Dr. Oliver testified that her injuries were not consistent with her version of events. Bennett's testimony that petitioner was not present when she suffered the injuries was contradicted by the testimony of Rubit and her son. Because of the strong evidence against petitioner, the undersigned finds that he has not demonstrated that he was prejudiced by counsel's failure to argue that there was no conclusive evidence as to whether the broken glass was from a 40 ounce beer bottle or a pickle jar. The instant claim of alleged ineffective assistance of counsel is without merit.

Failure to Hire a Defense Expert

Petitioner argues that his counsel was ineffective for failing to hire an expert witness in support of his defense. (Dkt. No. 14, at 59.) In support of this argument, petitioner contends that the victim, on her own volition, went to the District Attorney's office the day after his arrest and gave her version of events. (Id., at 58.) Petitioner contends that the victim gave her story to the District Attorney even before she had a chance to talk to petitioner. (Id.)

It is unclear to the undersigned what petitioner is claiming an expert witness would have testified to.

In support of this claim, petitioner asks the court to refer to page 38 of his 66 page petition filed in Superior Court and the California Court of Appeal. Attached as an exhibit to the amended petition is an exhibit which appears to be the document petitioner refers to in support of this claim. After reviewing page 38 of this 66 page pleading, the undersigned finds no discussion regarding an expert witness. (Dkt. No. 14-1, at 104 of 140.)

Petitioner may be arguing that counsel should have hired an expert to testify regarding the effect of the medications on Mayo's ability to perceive events. However, this claim is conclusory and unsupported. See, e.g., James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.").

In the traverse, petitioner suggests that counsel was ineffective for not hiring an expert witness to testify in support of the victim's version of how she suffered her injuries. (Dkt. No. 34, at 26 of 52.) Petitioner has provided no evidence suggesting that an expert would have been able to testify in support of the victim's version of events. Because this claim is conclusory and unsupported, it should be denied.

For the reasons discussed above, the instant claim of alleged ineffective assistance of counsel is without merit.

Alleged Juror Misconduct

Petitioner argues that his counsel was ineffective for failing to ask for a mistrial, a new jury trial or removal of alternate juror number one based on possible juror misconduct. In support of this claim, petitioner cites pages 31-34 of the reporter's augmented transcript ("RAT"). At these pages of the RAT, during voir dire, prospective juror Rico reported that while she was in the ladies' room, she overheard another prospective juror saying that if she was smart, she would say petitioner was guilty because he was in custody. (RAT, at 33.) The trial court asked juror Rico if she thought the juror's comment reflected a plan to get off the ...

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