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Sherrod Kearney v. G. Swarthout


November 8, 2011


The opinion of the court was delivered by: Claudia Wilken United States District Judge



United States District Court For the Northern District of California

Petitioner Sherrod Kearney, a state prisoner incarcerated at Vacaville State Prison, has filed a petition for a writ of habeas 14 corpus pursuant to 28 U.S.C. § 2254. 15


The following facts are taken from the opinion of the California Court of Appeal. Resp't's Ex. A. 18

Petitioner was accused of injuring Leticia Garcia in three separate incidents in 2004, and of arson in connection with the 20 third incident. The jury found him guilty of three counts of 21 corporal injuries on a cohabitant and one count of arson of an 22 inhabited structure. At Petitioner's preliminary hearing, the 23 arresting officers from the three incidents testified about 24 Garcia's statements to them at the time of those incidents. At 25 the preliminary hearing, Garcia acknowledged making statements to 26 officers that incriminated Petitioner, but she then repudiated 27 them. At trial, Garcia invoked her rights under the Fifth 28 Amendment of the United States Constitution and refused to testify regarding the three incidents or her relationship with Petitioner.

Instead, a transcript of Garcia's testimony at Petitioner's 3 preliminary hearing was read to the jury. Petitioner's trial 4 counsel did not object to admission of Garcia's preliminary 5 hearing transcript, but she did object to the admission of the 6 officers' preliminary hearing transcripts. 7

The California Court of Appeal affirmed the judgment on March 27, 2008. The California Supreme Court denied review on July 9, 9 2008. The United States Supreme Court denied certiorari on 10 November, 3, 2008.

Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court on November 3, 2009. Petitioner then 13 filed a federal habeas petition with this Court on November 9, 14 2009. On February 10, 2010, this Court stayed the federal 15 proceedings pending Petitioner's exhaustion of state judicial 16 remedies. Petitioner's state petition was denied on April 22, 17 2010; Petitioner's amended federal habeas petition was filed on 18 September 1, 2010. 19


I. Habeas Corpus 21

A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state 23 court unless the state court's adjudication of the claims: 24

"(1) resulted in a decision that was contrary to, or involved an 25 unreasonable application of, clearly established Federal law, as 26 determined by the Supreme Court of the United States; or 27 28

(2) resulted in a decision that was based on an unreasonable 2 determination of the facts in light of the evidence presented in 3 the State court proceeding." 28 U.S.C. § 2254(d). 4

"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite 6 to that reached by [the Supreme] Court on a question of law or if 7 the state court decides a case differently than [the Supreme] 8 Court has on a set of materially indistinguishable facts." 9

Williams v. Taylor, 529 U.S. 363, 412-13 (2000). "Under the 10 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing 12 legal principle from [the Supreme] Court's decisions but 13 unreasonably applies that principle to the facts of the prisoner's 14 case." Id. at 413. 15

The only definitive source of clearly established federal law under Title 28 U.S.C. section 2254(d) is in the holdings of the 17 Supreme Court as of the time of the relevant state court decision. 18

Id. at 412. But circuit law may be persuasive authority for 19 purposes of determining whether a state court decision is an 20 unreasonable application of Supreme Court law. Clark v. Murphy, 21 331 F.3d 1062, 1070-71 (9th Cir. 2003). 22

In determining whether the state court's decision is contrary to, or involved an unreasonable application of, clearly 24 established federal law, a federal court looks to the decision of 25 the highest state court to address the merits of a petitioner's 26 claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 27 669 n.7 (9th Cir. 2000). If constitutional error is found, habeas 28 relief is warranted only if the error had a "'substantial and injurious effect or influence in determining the jury's verdict.'" 2 Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. 3 Abrahamson, 507 U.S. 619, 638 (1993)). 4


Respondent's answer poses two grounds on which the petition 6 should be denied: (1) Petitioner has submitted a mixed petition 7 because he has not exhausted all of his claims; and (2) 8 Petitioner's claims do not survive on the merits. 9

I. Mixed Petition 10

Respondent argues, without explanation, that Petitioner failed to exhaust state remedies for his claim of ineffective assistance of appellate counsel. On this basis, Respondent argues 13 that Petitioner has submitted a mixed petition that must be 14 dismissed. This argument fails; Petitioner included a claim for 15 ineffective assistance of appellate counsel in his state habeas 16 petition, Resp.'s Ex. B, and "habeas corpus is the appropriate 17 means to remedy deprivation of the effective assistance of 18 appellate counsel." In re Spears, 157 Cal. App. 3d 1203, 1208 19 (1984). 20

II. The Merits of the Petition 21

A. Confrontation Right

This Court examines the reasonableness of the decision of the California Court of Appeal. It addressed Petitioner's argument 24 that the admission of the officers' preliminary hearing testimony, 25 containing prior statements made by Garcia, violated his 26 constitutional right to confront witnesses against him because he 27 never had an opportunity to confront Garcia. The rule announced 28 in Crawford v. Washington requires that, in order for testimonial hearsay statements to be admissible, the witness must be 2 unavailable and the defendant must have had a prior opportunity to 3 cross-examine that witness. 541 U.S. 36, 53-54 (2004). Although 4 Garcia's statements were likely testimonial, it is unnecessary to 5 make that determination, because there was an opportunity for 6 cross-examination. 7

The Court of Appeal reasonably decided that Petitioner's 8 confrontation right had not been violated by the admission of the 9 officers' and Garcia's preliminary hearing transcripts. Garcia 10 invoked her Fifth Amendment right and refused to testify at trial, but she testified at Petitioner's preliminary hearing, and was cross-examined by Petitioner's trial counsel. Petitioner argues 13 that this opportunity to cross-examine Garcia at the preliminary 14 hearing was inadequate. It was at this hearing that Garcia 15 repudiated her previous statements to officers as false 16 accusations against Petitioner. The court analogized Petitioner's 17 case to "a similar situation" in which the California Court of 18 Appeal found that an officer's testimony containing a witness's 19 previous statements to him did not violate Crawford because the 20 defendant had the opportunity to cross-examine the witness at the 21 preliminary hearing. See People v. Price, 120 Cal. App. 4th 224, 22 235 (2004). "Generally speaking, the Confrontation Clause 23 guarantees an opportunity for effective cross-examination, not 24 cross-examination that is effective in whatever way, and to 25 whatever extent, the defense might wish." Delaware v. Fensterer, 26 474 U.S. 15, 20 (1985). The Court of Appeal in Petitioner's case 27 cited the Supreme Court in explaining its decision: "The most 28 successful cross-examination at the time the prior statement was made could hardly hope to accomplish more than has already been 2 accomplished by the fact that the witness is now telling a 3 different, inconsistent story, and--in this case--one that is 4 favorable to the defendant." Resp't's Ex. A (quoting California 5 v. Green, 399 U.S. 149, 159 (1970)). Petitioner not only had the 6 opportunity to cross-examine Garcia but, in doing so, elicited 7 testimony that was in his favor. 8

B. Right to Counsel

Petitioner claims that his trial counsel failed to object to 10 hearsay testimony, that her failure to object fell below the standard of performance required by the Sixth Amendment, and that 12 she admitted she had no time to investigate or prepare for his 13 defense. He claims that a reasonable probability exists that, but 14 for trial counsel's failures in these regards, a result more 15 favorable to Petitioner would have occurred. Petitioner further 16 claims that his appellate counsel failed to present newly 17 discovered, exculpatory evidence on appeal, which prevented him 18 from obtaining a more favorable result. 19

1. Legal Standard

A claim of ineffective assistance of counsel is cognizable as 21 a claim of denial of the Sixth Amendment right to counsel, which 22 guarantees not only assistance, but effective assistance of 23 counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The 24 benchmark for judging any claim of ineffectiveness must be whether 25 counsel's conduct so undermined the proper functioning of the 26 adversarial process that the trial cannot be relied upon as having 27 produced a just result. Id. 28

In order to prevail on a Sixth Amendment ineffectiveness of 2 counsel claim, Petitioner must establish two things. First, he 3 must establish that counsel's performance was deficient, that is, 4 that it fell below an "objective standard of reasonableness" under 5 prevailing professional norms. Id. at 687-88. Second, he must 6 establish that he was prejudiced by counsel's deficient 7 performance, that is, that "there is a reasonable probability 8 that, but for counsel's unprofessional errors, the result of the 9 proceeding would have been different." Id. at 694. The 10 Strickland framework for analyzing ineffective assistance of counsel claims is considered to be "clearly established Federal 12 law, as determined by the Supreme Court of the United States" for 13 the purposes of Title 28 U.S.C. section 2254(d) analysis. See 14 Williams v. Taylor, 529 U.S. 362, 404-08 (2000). 15

2. Ineffective Assistance of Trial Counsel

Petitioner argues that trial counsel was ineffective for failing to object to admission of Garcia's and the officers' 18 preliminary hearing testimony and for failing to remove herself 19 from Petitioner's case despite allegedly not having the time to 20 investigate the facts and prepare an adequate defense. As set out 21 in Strickland, the Court "indulge[s] a strong presumption that 22 counsel's conduct falls within the wide range of reasonable 23 professional assistance." 466 U.S. at 689. 24

It was reasonable for Petitioner's counsel not to object to admission of Garcia's preliminary hearing testimony. Garcia's 26 testimony at the preliminary hearing was exculpatory, and the only 27 evidence that controverted Garcia's original statements to the 28 police. Petitioner also contends that counsel was ineffective for failing to object to admission of the officers' preliminary 2 hearing testimony. His argument fails because she did in fact 3 object to the officers' testimony. As to both of these claims, 4 Petitioner also fails to satisfy the second part of the Strickland 5 analysis because he fails to show how the admission of the 6 statements caused him any prejudice: Garcia's testimony was in his 7 favor; the officers were available to testify, did testify, and 8 were cross-examined at his trial. 9

Petitioner further claims that his trial counsel should have 10 removed herself from his case because she lacked the time to 11 investigate and prepare a defense.

Although Petitioner does not 12 explain the facts behind the claim in his federal petition, his 13 state petition identifies statements made at a Marsden*fn1 hearing, 14 where Petitioner complained that his counsel had asked 15 Petitioner's mother to help investigate the case. Petitioner 16 argued that trial counsel had failed to send an investigator. Ex. 17 O. Trial counsel replied that she did have an investigator and 18 that she enlisted the mother's help because people in the 19 community do not like to talk to attorneys. Id. The court denied 20 Petitioner's motion and found trial counsel's representation 21 reasonable and competent. 22

3. Ineffective Assistance of Appellate Counsel

Petitioner bases his claim for ineffective assistance of 24 appellate counsel on appellate counsel's failing to complain that 25 trial counsel was ineffective for not introducing letters and 26 declarations from Garcia containing what Petitioner believed was 2 exculpatory evidence. These letters and declarations contain 3 statements by Garcia repudiating her initial statements to police. 4

Petitioner moved for a new trial and presented these materials to 5 the trial court. The Constitution imposes no obligation on 6 appellate counsel to raise every issue, even non-frivolous ones, 7 requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751-754 8 (1983) (rejecting per se rule that client must be allowed to 9 decide what issues to present on review). Rather, "the weeding 10 out of weaker issues is widely recognized as one of the hallmarks 11 of effective appellate advocacy." Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Not only is Petitioner's appellate 13 counsel entitled to discretion on which issues to raise on appeal 14 but, as the trial court observed at the hearing on Petitioner's 15 new trial motion, Garcia's statements were cumulative as "further 16 recantation or reassertion of the testimony given at the 17 preliminary hearing under oath." The trial judge opined that the 18 letters would not have resulted in a different jury verdict. Ex. 19 G. at 703-704. 20


For the foregoing reasons, the petition for writ of habeas 22 corpus is DENIED. 23

Rule 11(a) of the Rules Governing Section 2254 Cases now 24 requires a district court to rule on whether a petitioner is 25 entitled to a certificate of appealability in the same order in 26 which the petition is denied. Reasonable jurists could find the 27 Court's assessment of Petitioner's claims debatable. See Slack v. 28 McDaniel, 529 U.S. 473, 484 (2000). Thus, a certificate of appealability is GRANTED. The Clerk of the Court shall enter 2 judgment in favor of Respondent and close the file. 3 4



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