The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner Shannon Secrease is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of life without the possibility of parole after a jury convicted him of first-degree murder and carjacking. Petitioner raises a multitude of claims in his amended federal habeas petition; specifically:
1. ineffective assistance of trial counsel for failing to present any evidence at trial ("Claim I");
2. ineffective assistance of appellate counsel by only raising three weak appellate arguments ("Claim II");
3. ineffective assistance of trial counsel for failing to call Jamila King as a witness ("Claim III");
4. ineffective assistance of trial counsel for failing to call Terrence Mullins as a witness ("Claim IV");
5. ineffective assistance of trial counsel for failing to call Petitioner's mother as a witness and her refusal to use available character witnesses ("Claim V");
6. ineffective assistance of trial counsel for failing to conduct any investigation into a duress defense ("Claim VI");
7. ineffective assistance of trial counsel for failing to investigate Petitioner's mental state ("Claim VII");
8. ineffective assistance of trial counsel for failing to investigate and rebut that Petitioner had planned the crime ("Claim VIII");
9. ineffective assistance of trial counsel due to an uninformed and ill-prepared opening statement, cross-examination and voir dire ("Claim IX");
10. ineffective assistance of trial counsel for failing to object to inadmissible prosecution testimony ("Claim X");
11. ineffective assistance of trial counsel for failing to request a mistrial due to statements made by a prospective juror during voir dire ("Claim XI");
12. ineffective assistance of trial counsel in failing to advise Petitioner that the ultimate decision of whether to testify at trial was his to make ("Claim XII");
13. the cumulative effect of Petitioner's trial counsel's errors denied Petitioner a fair trial ("Claim XIII");
14. trial court error in failing to hold a People v. Marsden, 2 Cal. 3d 118, 84 Cal. Rptr. 156, 465 P.2d 44 (1970) hearing ("Claim XIV");
15. trial court error in excluding Ericc Pickett's out-of-court statements ("Claim XV");
16. trial court error in excluding evidence about Ericc Pickett which showed that Petitioner had reason to fear Pickett ("Claim XVI");
17. trial court error in failing to instruct the jury on the elements of the lesser included offense of taking a vehicle under California Vehicle Code Section 10851 ("Claim XVII")
18. trial court error in impermissibly shifting the burden of proof to the Petitioner during the jury instructions ("Claim XVIII");
19. trial court error in failing to sua sponte instruct the jury on a duress defense ("Claim XIX");
20. Petitioner was denied his Constitutional right to testify on his own behalf at trial ("Claim XX");
21. there was insufficient evidence to convict Petitioner of carjacking and first-degree murder ("Claim XXI");
22. there was insufficient evidence that Petitioner acted as a major participant with reckless indifference to human life ("Claim XXII");
23. Petitioner's sentence must be vacated because the jury verdict does not reflect a special circumstance finding ("Claim XXIII");
24. Petitioner was improperly convicted of an offense not charged in the information ("Claim XXIV");
25. Petitioner's conviction for carjacking is barred as it is a necessarily included offense of the first-degree murder while engaged in the commission of a carjacking conviction ("Claim XXV"); and
26. cumulative error ("Claim XXVI").
For the following reasons, the petition should be denied.
The record reflects the following chronology of relevant proceedings:
1. On February 26, 1998, Petitioner was convicted of: (1) first-degree murder under Section 187(a) of the California Penal Code; (2) a carjacking-murder special circumstance allegation under section 190.2(a); and (3) carjacking under section 215(a), by a jury in Solano County Superior Court. (See Resp't's Answer Ex. A, at p. 134-36.) The jury found two firearm use allegations, under section 12022.5, to not be true. (See id. at p. 135-36.)
2. On May 21, 1998, Petitioner filed a motion pursuant to Marsden, 2 Cal. 3d 118, 84 Cal. Rptr. 156, 465 P.2d 44,*fn1 and a motion for a new trial, due to ineffective assistance of counsel. (See Resp't's Answer Ex. A, at p. 170.)
3. On May 28, 1998, the trial court granted the Marsden motion, relieved trial counsel (Diane Bylund), and appointed Carl Spieckerman to represent Petitioner. (See id. at p. 201.)
4. On July 27, 1998, the trial court denied Petitioner's motion for a new trial. (See id. at p. 218.)
5. On September 18, 1998, the trial court sentenced Petitioner to life without the possibility of parole on the first-degree murder conviction, and stayed the sentence on the carjacking conviction pursuant to Cal. Penal Code § 654. (See Resp't's Answer Ex. A, at p. 250.)
6. Petitioner filed a notice of appeal. (See id. at p. 251.)
7. On July 27, 2000, Petitioner filed his state habeas petition in the California Court of Appeal, First Appellate District. (See Resp't's Answer Exs. L, O.)
8. On August 3, 2000, the California Court of Appeal issued an order stating it would consider Petitioner's direct appeal and his state habeas petition together for decision.
(See Resp't's Answer Ex. O.)
9. On February 21, 2001, the California Court of Appeal issued a reasoned decision vacating the sentence and remanding the matter for resentencing "to allow the trial court to exercise its discretion pursuant to section 190.5, either to sentence [Petitioner] to a term of 25 years to life, or to the term of life imprisonment without the possibility of parole, as previously imposed." (Resp't's Answer Ex. I at p. 43.) "In all other respects[,] the judgment [wa]s affirmed." (Id.)
10. Also on February 21, 2001, the California Court of Appeal denied Petitioner's state habeas petition. (See Resp't's Answer Ex. O.)
11. On March 30, 2001, Petitioner filed a state habeas petition in the California Supreme Court, Case No. S096406 (See Resp't's Answer Exs. P, Q.) In that petition, Petitioner raised the following claims: (1) ineffective assistance of trial counsel for failing to request a mistrial and dismissal of the entire jury panel; and (2) ineffective assistance of trial counsel for failing to advise Petitioner that the ultimate decision over whether to testify was his to make.
12. On April 2, 2001, Petitioner filed his petition for review in the California Supreme Court, Case No. S096478 (See Resp't's Answer Exs. J, K.) In that petition for review, Petitioner raised the following issues: (1) whether a defendant's failure to personally assert his right to testify constitutes a waiver when the defendant was not advised by counsel that the decision was his alone to make and whether any such error is per se reversible or subject to harmless error analysis; (2) whether a co-defendant's statement that he acted alone is an admissible statement against interest;
(3) what is the proper standard of review for determining whether a statement is against penal interest under Cal. Evid. Code § 1230; (4) does Apprendi v. New Jersey, 530 U.S. 466 (2000) overrule the California Supreme Court's holding that a special circumstance finding is not an element for purposes of determining whether an offense is a necessarily included offense; (5) does the rule of People v. Santamaria, 8 Cal.4th 903');">8 Cal. 4th 903, 35 Cal. Rptr. 2d 624, 884 P.2d 81 (1994) -- that acquittal of a weapon use allegation does not bar retrial for murder on a theory that the defendant was the actual killer -- permit affirming a special circumstance finding on a theory that the defendant was the actual killer where the defendant was acquitted of personal use and the jury was instructed that if it could not determine his role it could not find the special circumstance true under an actual killer theory; (6) should the court overrule the Santamaria rule, particularly where the jury was never instructed that it could convict the defendant of felony-murder without determining the defendant's role; (7) was the evidence of carjacking and murder sufficient; (8) did the court err in failing to hold a Marsden hearing; (9) did the exclusion of the co-defendant's statements violate Petitioner's right to due process and to put on a defense; (10) did the exclusion of evidence about the co-defendant violate Petitioner's rights to due process and to put on a defense; (11) was Petitioner denied his right to effective representation; (12) did the trial court err in failing to instruct the jury on the elements of the lesser included offense of taking a vehicle; (13) did the third-party culpability instruction shift the burden of proof; (14) was the evidence of the special circumstance finding sufficient;
(15) did the jury verdicts fail to reflect a special circumstance finding; (16) was the trial court's answer to the jury's question erroneous; (17) was Petitioner convicted of an uncharged offense in violation of his federal and state constitutional rights to due process; and (18) did the cumulative effect of the errors deprive Petitioner of his federal constitutional rights to due process.
13. On June 13, 2001, the California Supreme Court denied the petition for review (Case No. S096478) without comment or citation. (See Resp't's Answer Ex. K.)
14. Also on June 13, 2001, the California Supreme Court denied the state habeas petition (Case No. S096406) without comment or citation. (See Resp't's Answer Ex. Q.)
15. On January 3, 2002, "the trial court once again imposed a term of life without the possibility of parole." People v. Secrease, No. A097806, 2002 WL 31769077, at *1 (Cal. Ct. App. Dec. 11, 2002).
16. Petitioner filed an appeal to the California Court of Appeal after he was resentenced.
17. On December 11, 2002, the California Court of Appeal denied Petitioner's direct appeal on his resentencing, and affirmed judgment. See id. at *8.
18. On February 25, 2003, the California Supreme Court denied Petitioner's petition for review on his resentencing without comment or citation.*fn2
19. On February 24, 2004, Petitioner filed the original federal habeas petition in the United States District Court for the Northern District of California.
20. Also on February 24, 2004, Petitioner filed a motion to hold the federal habeas petition in abeyance so he could exhaust certain unexhausted claims in state court.
21. On April 12, 2004, the Honorable Charles R. Breyer, the assigned United States District Judge at the time, granted Petitioner's motion to hold his petition in abeyance. The district court noted, "[i]f he fails to timely file his state petition, the Court will proceed with his petition in this Court as it is currently pled." (See Dkt. No. 9.)
22. On December 6, 2007, Petitioner filed a state petition for habeas corpus with the California Supreme Court. (See Pet'r's Am. Pet. Ex. R.) Petitioner raised the following claims in that state habeas petition: (1) ineffective assistance of counsel for failing to call Jamila King and Terrence Mullins as witnesses at trial; (2) ineffective assistance of counsel for failing to present or investigate a duress defense; (3) ineffective assistance of counsel for failing to investigate Petitioner's post-traumatic stress disorder; (4) ineffective assistance of counsel for failing to investigate the prosecution's evidence regarding Petitioner's singing of a song which the prosecutor argued showed that he was anticipating his participation in an upcoming crime; (5) ineffective assistance of trial counsel for failing to develop a theory of the case, failing to present a competent voir dire, failing to present a coherent opening or closing statement, failing to object to testimony that was admissible, failing to object to the introduction of incomplete song lyrics, failing to object to allowing inadmissible evidence to be admitted, failing to object to repeated misstatements of the evidence by the prosecutor as well as a cumulative ineffective assistance of counsel argument; and (6) trial court error in failing to sua sponte instruct the jury on the defense of duress.
23. On June 11, 2008, the California Supreme Court denied the state habeas petition, citing In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509, 855 P.2d 729 (1993);In re Robbins, 18 Cal. 4th 770, 780, 77 Cal. Rptr. 2d 153, 959 P.2d 311 (1998). (See Pet'r's Am. Pet. Ex. R.)
24. On July 23, 2008, the California Supreme Court sent notice to Petitioner's counsel that the petition was denied. (See id.)
25. On September 11, 2008, Petitioner filed an amended federal habeas petition. 26. On December 8, 2008, Petitioner filed a motion for change of venue to transfer this action to the United States District Court for the Eastern District of California.
27. On January 23, 2009, Judge Breyer granted the motion for change of venue to the United States District Court for the Eastern District of California.
28. On August 17, 2009, Respondent filed a motion to dismiss. The Honorable John F. Moulds, the assigned United States Magistrate Judge at the time, summarized Respondent's arguments as follows:
Respondent asserts that the amended petition should be stricken because [P]petitioner failed to comply with the district court's April 12, 2004 order requiring [P]petitioner to file his state exhaustion petition within 30 days from the date of that order, and failed to comply with the thirty day time limit required under Rhines v. Weber, 544 U.S. 269, 277 (2005). In the alternative, [R]espondent argues that the novel claims 2, 3, 6, 8, 16 and one unnumbered claim involving cumulative prejudice from ineffective assistance of counsel on the amended petition must be dismissed as they were not exhausted until after the one-year statute of limitations and do not relate back to any claim alleged in the original petition. Respondent argues that the Supreme Court's decision in Mayle v. Felix, 545 U.S. 644 (2005), mandates dismissal of the new claims at issue. (See Dkt. No. 38 at p. 3.)
29. On October 30, 2009, Judge Moulds issued an order, findings and recommendations on Respondent's motion to dismiss. Since "Petitioner failed to file a timely opposition to the motion," Judge Moulds ordered that a District Judge be assigned to the case, and recommended that: (1) Respondent's August 17, 2009, motion to dismiss be granted; (2) Petitioner's September 11, 2008, amended petition be stricken; and (3) the case proceed on Petitioner's February 24, 2004, original petition. (SeeDkt. No. 33 at p. 1, 5.)
30. On November 3, 2009, Petitioner filed an opposition to Respondent's motion to dismiss.
31. On November 24, 2009, Judge Moulds issued an order vacating the October 30, 2009, findings and recommendations after deeming Petitioner's opposition to Respondent's motion to dismiss timely.
32. On January 26, 2010, Judge Moulds issued findings and recommendations which recommended that: (1) Respondent's August 17, 2009, motion to dismiss be denied; and (2) this action proceed on the September 11, 2008, amended petition. (See Dkt. No. 38.) The court reasoned that "all of the disputed claims relate back to the original petition," and "the court need not reach [P]petitioner's actual innocence arguments or the issue of equitable tolling." (Id. at p. 13.)
33. On March 15, 2010, the district court adopted the findings and recommendations.
34. On June 2, 2010, Respondent filed an answer.
35. On July 28, 2010, Petitioner filed a traverse.
36. On December 1, 2010, the matter was reassigned to the undersigned by Chief Judge Ishii.
III. FACTUAL BACKGROUND*fn3
On September 15, 1996, a police officer found David Iano lying on a road near the Vallejo waterfront; he was bleeding profusely from a gunshot wound to the head. He died from the gunshot wound, which was fired from a range of two to twelve inches. The bullet entered the right front of his head and exited the left rear, with a slightly upwards trajectory. Earlier that afternoon the victim left his pickup truck at his residence with a "for sale" sign on it.
On September 29, 1996, a San Pablo police officer found the victim's pickup truck parked across the street from Ericc Pickett's house. The engine was lying on the ground. There was blood spatter on the passenger floorboard. Pickett approached the officer and claimed that the vehicle belonged to him. He had the keys to the truck. A search of his residence led to the discovery of a manual on how to rebuild similar truck engines. [FN 3] A criminalist later found human blood smears across the truck seat from left to right and inside the frame of the passenger door. There was human blood spatter on the ceiling of the truck cab. [FN 3] Ericc Pickett ultimately entered a no contest plea to first degree murder. [Petitioner] made two statements to the police regarding the crime. On the date that the victim's truck was discovered, the police contacted [Petitioner] at his sister's house in San Pablo. [Petitioner] indicated that two weeks earlier he had given his friend Ericc Pickett a ride to Vallejo to purchase a pickup truck. [Petitioner's] girlfriend [FN 4] accompanied them. [Petitioner] said he gave Pickett a ride to a gas station, dropped him off, and observed him go to a pay phone. [Petitioner] stated that he and his girlfriend then drove back to Contra Costa County. According to [Petitioner], a day or two later he went to Pickett's house and helped him remove the engine from the truck, which was parked across the street from Pickett's house. [Petitioner] claimed that he did not see any blood in the truck. He returned to Pickett's house a couple of other times and the truck was still there. [FN 4] Apparently [Petitioner's] girlfriend's true name was Vivian Patton; defendant identified her as Belinda Anderson to the police. The next day, September 30, 1996, [Petitioner] was arrested and interviewed by a detective. [Petitioner] stated that on September 15, 1996, he and the woman he referred to as Belinda Anderson drove to Vallejo; he gave Ericc Pickett a ride. [Petitioner] said that Pickett was interested in a pickup truck that had a large engine he wished to remove. [Petitioner] told the detective that Pickett indicated during the drive to Vallejo that after he looked at the truck, he would return and steal it and that if the owner got in his way, he was going to "whip his ass," or something to that effect. [Petitioner] believed that Pickett was carrying a gun. [Petitioner] indicated that while Pickett did not directly state that he had a firearm, his comments made [Petitioner] believe that he did. According to [Petitioner], he parked the car at a Raley's shopping center across the street from the victim's home. [Petitioner] said that "Anderson" stayed in his car, while he walked with Pickett to the victim's house. [Petitioner] told the detective that Pickett contacted the victim and arranged for a test drive. [Petitioner] indicated that the victim drove, [Petitioner] sat in the middle, and Pickett sat by the passenger door. They drove toward south Vallejo, with Pickett giving directions. [Petitioner] said that Pickett indicated that he had to go to the bathroom and told the victim to drive toward the water.
According to [Petitioner], as the victim slowed to make a U-turn, Pickett pulled out a gun and shot him once in the head. The victim collapsed into [Petitioner's] lap as the truck came to a stop. [Petitioner] said that he asked Pickett why he shot the victim; Pickett replied, "Shut up or you'll get yours." [Petitioner] stated that he then crawled over Pickett and got out of the car. Pickett dragged the victim out of the vehicle and left him on the road. [Petitioner] claimed that Pickett yelled at him to get back into the truck. The floor of the truck was covered in blood and [Petitioner] had blood on his face, arms, and hands. Pickett also had blood on his body and clothes. [Petitioner] said that he got back into the truck and they drove to the Raley's shopping center, where he retrieved his car, and then drove back to San Pablo with "Anderson." According to [Petitioner], Pickett threatened him if he talked about the incident. [Petitioner] told police that he would not have accompanied Pickett had he known what was going to happen; he thought Pickett was going to return later, on his own, to steal the truck. [Petitioner] stated that he returned to Pickett's house on at least two occasions to assist in removing the engine from the pickup and to clean up the blood. He said that he spoke to Vivian Patton (his girlfriend's real name) in order to arrange for an alibi. [Petitioner] made statements to two civilian witnesses, indicating that he had shot the victim. Ericc Pickett's former girlfriend, Renea Monique Webb, was at Pickett's house a few days after the shooting. [Petitioner] was present. She asked them how they acquired the truck. [Petitioner] told her the whole story -- that they went to Vallejo and stole a truck from a man and "Shannon stated that he shot the man. And I don't know who pushed him out [sic] the truck." Webb directly asked [Petitioner], "Did you shoot him?" He replied, "Yes." When first interviewed by the police, Webb indicated she did not know anything about the offense. She was once again Pickett's girlfriend at this time. She said she lent Pickett, or both him and [Petitioner], money to buy a truck. [FN 6] She testified that later, after Pickett was in custody, she called the police back, at her grandmother's urging, and told the truth. Although she testified that she never told the police where the gun was and did not know where it was, the police officer who interviewed her indicated that she stated that [Petitioner] said he buried it in his backyard. The police never located the murder weapon, although Pickett's mother gave them her .38 caliber firearm. [FN 6] She told police that she lent Ericc Pickett, alone, $300 to purchase a pickup truck. She testified that she lent the money to both Pickett and [Petitioner]. [Petitioner's] now former girlfriend, Vivian Patton, testified that she accompanied [Petitioner] and Ericc Pickett to Vallejo on September 15, 1996; she intended to visit her mother in Vallejo. During the drive, [Petitioner] sang along with a rap song that referred to killing someone and taking their possessions. They parked near a Raley's store and [Petitioner] and Pickett got out of the car; Patton remained behind. Approximately 30 to 45 minutes later, [Petitioner] returned without Pickett. He drove back to Patton's home. When they got to her residence, she noticed blood on his jacket, jeans, and shoes. She confronted him and asked what had happened. She said that [Petitioner] told her that he and Ericc went to Vallejo about a truck and that "he had shot the guy. Like I said, he said he shot the guy." Because the odor of blood disturbed her, she gave [Petitioner] a change of clothing. He did not appear to have a gun with him. [Petitioner] later called and asked her to tell the police that she had been with him on a certain date; she refused. She had never known [Petitioner] to have a gun or to be violent.
Patton's account to the police changed over time. When interviewed, she first told the police that she knew of Pickett, but that she had never seen him. She later said she went to Raley's with [Petitioner] and Pickett, but denied knowing anything else. She subsequently told them about seeing the blood on [Petitioner's] clothing and told them that [Petitioner] said he was the shooter. (Slip Op. at p. 2-6.)
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 only be granted for violations of the Constitution or laws of the United States. See 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d). Where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009); see also Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000), overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63 (2003). When no state court has reached the merits of a claim, de novo review applies. See Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
Respondent admits in his answer that Petitioner has exhausted all of his Claims.
V. ANALYSIS OF PETITIONER'S CLAIMS
In Claim I, Petitioner argues that trial counsel's decision to present no evidence at trial constituted ineffective assistance of counsel. The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating ineffective assistance of counsel. First, the petitioner must show that considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See id. at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the range of professional competent assistance. See id.
Second, a petitioner must affirmatively prove prejudice. See id. 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 the confidence in the outcome." Id. A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by defendant as a result of the alleged deficiencies . . . [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 697).
In Claim I, Petitioner alleges in conclusory fashion that trial counsel was ineffective for presenting no evidence at trial. While Petitioner is more specific in several of his other arguments of ineffective assistance of counsel that will be discussed infra, this conclusory allegation of ineffective assistance should be denied. See 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 Claim II, Petitioner alleges that appellate counsel was ineffective. Petitioner argues that appellate counsel was ineffective in his initial state petition for writ of habeas corpus because appellate counsel only included three weak arguments. Petitioner asserts that this caused some of his claims to initially be unexhausted for federal habeas purposes. However, Petitioner states that all of his Claims have since been exhausted as does Respondent in his answer. (See Resp't's Answer at p. 2.) Therefore, Claim II should be denied as Petitioner fails to show that he was prejudiced as all of his Claims are considered exhausted.
In Claim III, Petitioner alleges that trial counsel was ineffective for failing to call Jamila King*fn4 as a witness. The last reasoned decision on this Claim was from the February 21, 2001 decision from the California Court of Appeal which stated the following:
Jamila King, a girlfriend of Pickett, would have potentially testified that around the time of the shooting it was Pickett's habit to carry a .38-caliber firearm in his waistband. However, the murder weapon in this case was never recovered (although Pickett's mother turned her .38-caliber firearm over to police). The bullet that was used in the shooting was identified only has [sic] having a medium caliber, in the .38 to 9-millimeter range. Since the actual murder weapon was never identified, this testimony would have added little to the defense arguments and certainly would not have established defendant's innocence. Indeed, it would not negate the prosecution theory that defendant was the direct shooter, because defendant could have used his gun, Pickett's gun, or someone else's gun to accomplish the act. This testimony would have done nothing to negate the prosecution theory that defendant was, at the least, an aider and abettor in the homicide. At most it might have bolstered, as defendant now argues, his argument that he had a reason to fear Pickett and thus not to report the crime and to assist in cleaning up the blood. There was, however, no indication that defendant was aware of Pickett's gun-toting habit. Furthermore, Ms. Bylund was never specifically asked why she elected not to call King as a witness. [FN 23] [FN 23] At the earlier Marsden motion, Ms. Bylund indicated that the proffered testimony of Jamila King was the subject of an in limine motion and that the trial court excluded all of her testimony "except for one possible bit of evidence, and I -- it wasn't clear to me whether she had firsthand knowledge of that or if she was told by a second person. And I had to clarify that, so we had to have a 402 hearing." It would appear from the record that once Ms. Bylund decided that the prosecution has not proven its case, she rested without having this 402 hearing. (Slip Op. at p. 31.)
In an in limine motion dated February 22, 1998, the prosecution objected to Jamila King's proffered testimony. (See Resp't's Answer Ex. A at p. 62). The prosecution summarized King's testimony as follows:
Jamilla [sic] King has stated that she was with Ericc Pickett in Vallejo in August of 1996 when he first noticed the victim David Iano's truck with a for sale sign on it. He told her that he was going to test drive the truck, steal the truck, and would murder the owner if necessary. (Id.) The prosecution "object[ed] to the admission of this statement in evidence because it is hearsay, and falls under no exception to the hearsay rule." (Id.) The prosecution argued "[t]he statement does not fall under the declaration against interest exception" because under section 1230, "the declaration must be against the declarant's interest 'when made,'" and the prosecution contended "the declaration occurred prior to the murder." (Id.)
On February 23, 1998, prior to trial, the parties appeared before the trial court to discuss "a number of motions in limine that have been filed by the defense" and the prosecution. (See Resp't's Answer Ex. B pt. 5, at p. 2.) Ms. Diane Byland, Petitioner's defense counsel, stated she had nine to ten witnesses under subpoena, including character witnesses, but she "may not be calling all of them." (Id. at p. 19.)
During this hearing, Ms. Bylund stated she would be offering Jamila King's testimony at trial:
MS. BYLUND: . . . I agreed I am not bringing in the . . . Richmond police officer on the shotgun. And the only one I would be offering would be Jamilla [sic] King's testimony. She was Pickett's girlfriend through September of 1996, and she knew him to carry a black .38 all the time in his waistband. And I think that's highly probative, respecting his opportunity to commit this offense.
(Id. at p. 32.) The trial court advised Ms. Bylund that it would hear what King would testify to:
THE COURT: Well, here's what I will do. You have her under subpoena?
THE COURT: I'm going to have to hear from her and see what she has to say . . . in that regard. Okay.
So obviously that is evidence that you are going to want to present, but if you are prepared to make an opening statement tomorrow without hearing from her, you might lose that evidence. Depending on what she has to say. Am I clear on that.
MS. BYLUND: How is -- yes.
Later on in the hearing, the trial court confirmed that it would be "inclined" to admit King's proffered testimony that Pickett habitually carried a black .38 in his waistband at or near the time of the offense. (Id. at p. 36.) The trial court excluded King's proffered testimony that Pickett "tried to run her down" since King "gave exculpatory statements to the police." (Id. at 31, 36.
THE COURT: Okay. Jamilla [sic] King. Did we take care of Jamilla [sic] King this morning? That Mr. Pickett possess[ed] a gun, he threatened her, tried to run her down? I think we dealt with that this morning. Is there something more you want to talk about that? Maybe we haven't dealt with it.
MS. BYLUND: Judge, I thought the Court indicated the evidence he tried to run her down would not be admissible, and that the Court . . . would be inclined if she would say . . . [a]t or near the time that it was his habit to carry a black, . . . .38 in his waistband at the time.
MS. BYLUND: The court would be inclined to admit it.
MS. BYLUND: I don't think the court made a further commitment.
THE COURT: I think you are right. I think you are right.
The trial court held that it would exclude Jamila King's proffered testimony that Pickett stated he was interested in the truck, intended to steal it, and would kill the owner if needed. (Id. at p. 49-50.) The trial court, however, noted that Ms. Bylund could "try as [she] wish" during the trial to admit it into evidence:
MS. BYLUND: Actually there is a whole body of testimony that I believe . . . I would be offering, and it has to do with [Pickett] looking at the truck previously. . . . . . . . And looking at the truck, contacting Mr. Iano because of his interest in the truck, telling others he intended to get it, and he would steal it if he had to.
THE COURT: And that he'd kill the driver if he had to. You have that in your moving paper somewhere.
MS. BYLUND: I think that's probative as to his intent.
THE COURT: Okay. You have that written up here somewhere. Let's see if I can find it. . . . Okay. This is through Jamilla [sic] King?
THE COURT: Mr. Keeney [the prosecutor], you want to be heard? [PROSECUTOR:] I was objecting that it's hearsay.
Okay. Okay these statements were made sort of prepatory, as it were. His plan or scheme to get this car at all costs, right?
MS. BYLUND: Right. . . . .
THE COURT: Okay. I'll make a finding that this is not a declaration against the declarant's interests when those statements were made, so I'm going to sustain [the prosecutor's] objection to the introduction of those statements.
And now, is there anything else you want to take up at this time? MS. BYLUND: But that's -- he had been looking at this truck for several months. That is not a statement. And whether or not I can even get it in that form, I'm not sure.
THE COURT: Okay. Obviously you can try as you wish, but I have made my ruling on the specifics today. (Id. (emphasis added).)
The trial court also ordered that a 402 hearing should take place on the admissibility of King's proffered testimony that Pickett told her he had broken up the gun and given it to a third party:
MS. BYLUND: Pickett made a statement to Ms. King [that] a friend of his had the murder weapon. He had given the murder weapon to him. . . . Third party, Travalles (ph). . . . . [PROSECUTOR:] I make a hearsay objection.
MS. BYLUND: That is definitely, you know, on concealing evidence used in a homicide is a crime. [PROSECUTOR:] But giving it to somebody isn't. . . . .
THE COURT: What's the statement you are offering?
MS. BYLUND: You know, I didn't realize this would be disputed. I would have to ask King, or the court can ask King about the precise language that Pickett used when he told her he had given Travalles the weapon.
THE COURT: Would you like to have a 402 hearing before that person testifies in that regard?
MS. BYLUND: I think that would be fine, Judge.
(Id. at p. 52-54.) The California Court of Appeal opined, in a footnote, "[i]t would appear from the record that once Ms. Bylund decided that the prosecution had not proven its case, she rested without having this 402 hearing." (Resp't's Answer Ex. I, at p. 31 n. 23.)
On February 24, 1998, both parties gave opening arguments and on February 25, 1998, both parties finished closing arguments. As Petitioner correctly points out, the record reflects that "Petitioner had no evidence and no witnesses introduced on his behalf." (Pet'r's Points & Authorities Supp. Am. Pet. at 33 (emphasis omitted).) On February 26, 1998, the jury returned its verdicts.
On May 28, 1998, the parties appeared "for a Marsden motion, a motion to discharge the trial lawyer, who would be Ms. Bylund." (Reporter's Tr. May 28, 1998 Hr'g at p. 2.) Ms. Bylund also orally moved to withdraw as attorney of record. Under California law, a Marsden motion allows an indigent defendant the opportunity to state specific reasons why he should have a new attorney substituted for a previously appointed counsel. See Marsden, 2 Cal.3d at 122-23, 84 Cal. Rptr. 156, 465 P.2d 44.
During the hearing, Petitioner stated "[i]t was clear to [him]" that Jamilla [sic] King, among others, was to testify, but King did not testify." (Reporter's Tr. May 28, 1998 Hr'g at p. 13-14.) When the trial court asked Ms. Bylund whether King was a character witness, Ms. Bylund explained that the trial court ruled against all of King's proffered testimony except for one possibility, which was subject to a 402 hearing:
THE COURT: So [King] was a defense witness. Was she going to be a character witness or what? [PETITIONER:] No.
THE COURT: Ms. Bylund? [MS. BYLUND:] No, Your Honor. . . . Her testimony was the subject of a motion in limine, and basically the Court ruled against all of the proffered testimony except for one possibility.
THE COURT: Was she the older woman?
MS. BYLUND: No. . . . [King's] proffered testimony was the subject of an limine motion. The court ruled against all of our proffered testimony from Ms. King except for one possible bit of evidence, and . . . it wasn't clear to me whether she had firsthand knowledge of that or if she was told by a second person. And I had to clarify that, so we had to have a 402 hearing. So that's what she was going to testify to.
(Id. at p. 14.) However: (1) the trial court was inclined to admit King's proffered testimony that Pickett habitually carried a black .38 at the time of offense; (2) the trial court ruled the 402 hearing was necessary to determine admissibility of King's proffered testimony that Pickett broke up gun and gave it to third party; and (3) the trial court ruled that defense counsel could attempt to admit at trial Pickett's statement to King that Pickett intended to steal truck and would kill owner if needed. King was not discussed any further in this hearing, and the trial court ultimately relieved Ms. Bylund as attorney of record.
On July 27, 1998, Petitioner brought a motion for a new trial "on a number of grounds," including "an allegation that [Petitioner] did not receive effective assistance of counsel during the trial." (Resp't's Answer Ex. B pt. 8, at p. 5-6.) The prosecution called Ms. Bylund as a witness. Ms. Bylund testified she did not tell Petitioner she was going to call King as a witness at the end of the prosecution's case:
[PROSECUTOR:] Okay. Did you say those things to him he described. Namely, at the end of the prosecution's case, did you tell him that you were going to call King, Mullins and some character witnesses and then you and [Petitioner] would discuss whether he should testify? [MS. BYLUND:] No. (Id. at p. 26.) Ms. Bylund admitted she discussed with Petitioner whether she would put on any defense evidence, including calling King as a witness. (Id. at p. 26-27.)
When asked to "describe conversations" with Petitioner as to what, if any, defense evidence would be put on, Ms. Bylund answered she discussed the advantages and disadvantages of each witness, without any specific reference to King:
[MS. BYLUND:] Throughout the trial we would constantly be discussing defense witnesses and whether or not we would put on a defense or rest. And the advantages and disadvantages of each. And the disadvantages of some of the respective defense witnesses, especially Mr. Mullins. (Id. at p. 28.)
Ms. Bylund also testified that she had "discussed at length" with Petitioner that "in addition to no witnesses being called[,] he would not testify." (Id. at p. 32.) According to Ms. Bylund, this was discussed before the prosecution rested its case. (Id. at p. 32-33.)
[PROSECUTOR:] So if [Petitioner] states that the first he heard about no defense witnesses or evidence being put on, was after the prosecution rested, that would be different than your recollection of what was said between you and him? [MS. BYLUND:] Yes.
(Id. at p. 33.) The California Court of Appeal determined that, "Ms. Bylund was never specifically asked why she elected not to call King as a witness." (Resp't's Answer Ex. I, at p. 31.) The trial court ultimately denied Petitioner's motion for a new trial. (See Resp't's Answer Ex. B pt. 8, at p. 37.)
On September 11, 2008, Petitioner filed his amended federal habeas petition. Petitioner included a declaration from Jamila King dated May 9, 2005, over seven years after the trial ended. (See Pet'r's Am. Pet. Ex. E.) In King's declaration, she stated that:
I was a long-time friend and associate of Ericc Pickett and an acquaintance of Shannon Secrease.
About or in September/October, 1996, I resided at . . . Carolina Street, Vallejo, California. About that time, Ericc Pickett, having no place to stay after being evicted from his parent's home, was allowed to stay at my residence. He stayed at the residence for an average of 4 nights per week during a three-week period.
At several times during the period in which he stayed at my residence, Ericc Pickett would examine the classified newspaper advertisements in an attempt to locate a vehicle having a particular type [of] engine. Pickett explained to me that he intended to steal the vehicle and remove its engine and place the engine into his own vehicle. He further told me that his plan included, ". . . finding someone stupid enough to drive me there." Pickett indicated that he intended to dupe an unsuspecting person into driving him to the location of the vehicle he wanted to steal.
At some point prior to the murder of the car owner, Pickett told me that he had found the person that he was going to get him to drive him to the location of the vehicle he intended to steal. He told me that that person was [Petitioner]. I had not met [Petitioner] at that time.
Pickett described [Petitioner] to me as being stupid, a "mamasboy," and a looser [sic]. Pickett also told me that [Petitioner] could easily be fooled and used. A short time prior to the murder, I met [Petitioner] when he accompanied Pickett on a visit to my residence. During this visit, Pickett told me, again, that he intended to "use" [Petitioner] to drive him to the location where he intended to steal a vehicle. Pickett did not tell me that he had located the vehicle that he intended to steal.
While Pickett was at my residence, I was aware that he was in possession of a handgun, which I believe was the same gun used in the crime for which he and Secrease were subsequently arrested. During a conversation, prior to the murder, Picket told me that he did not wish to kill anyone, but he would if he had to in order, ". . . to get what I want." I do not know what happened to the handgun. After I learned of the murder, I, of my own volition, provided a statement to the Vallejo Police Detectives investigating the murder and later to [Petitioner's] Attorney (a female) and her Investigator from the Solano County Public Defender's Office. The Attorney told me that my testimony was critical to the Defense. On the date I was to testify, I was not called by the Defense. (Id. at p.1-2.)
Petitioner argues that the testimony of Jamila King "would have helped explain how [Petitioner] became involved in this incident; how Mr. Pickett planned and executed the crime; why [Petitioner] did not report the crime to the police; and why [Petitioner] would have been afraid of Mr. Pickett." (Pet'r's Traverse at p. 12.) Under these circumstances it is easier to analyze this argument under the Strickland prejudice prong. To establish prejudice caused by the failure to call a witness, Petitioner must show that the witness was likely to have been available to testify, that the witness would have given the proffered testimony and that the witness would have created a reasonable probability that the jury would have reached a verdict more favorable to Petitioner. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (speculating as to what a proposed witness would say is not enough to establish prejudice); United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988) (no ineffective assistance because of counsel's failure to call a witness where, among other things, there was no evidence in the record that the witness would testify).
Petitioner argues that King's 2005 statement shows that Pickett was simply using Petitioner to transport him to commit the crime unbeknownst to Petitioner. (See Pet'r's Points & Authorities Supp. Am. Pet. at p. 42-43.) He also argues that King's statement helps explain why Petitioner did not report the crime to the police and why Petitioner may have been afraid of Pickett. (See Pet'r's Traverse at p. 12.) Petitioner relies on the statements in King's declaration that Pickett told her that he intended to dupe an unsuspecting person to drive him to steal the vehicle. At the outset, it should be noted that Petitioner does not suggest how this purported testimony by King about what Pickett told her regarding the individual he wanted to "dupe" would be admissible under a hearsay exception.
Nevertheless, assuming arguendo that the statements could have been admitted at trial, Petitioner fails to show to a reasonable probability that they would have changed the outcome of the trial. Petitioner's own statements to police established that he was not an unknown participant in the carjacking. For example, Petitioner stated to police that Pickett had stated to him that, "after looking at the pickup truck, he was going to come back and take it. And they discussed going back and taking the pickup truck." (Resp't's Answer Ex. B pt. 5, at p. 72.) The detective then testified that taking it meant "stealing it." (Id.) Furthermore, the detective testified that Petitioner told him that while driving down to Vallejo, Pickett made comments to make Petitioner believe that he had a gun. (Id. at p. 75.) Additionally, the following colloquy took place on direct examination between the prosecutor and the detective who interviewed Petitioner:
Q: Okay. Now, did Mr. Secrease give you any more details regarding the conversation between him and Pickett about ...