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Anthony Marvell Semien v. Francisco Jacquez

November 9, 2011

ANTHONY MARVELL SEMIEN, PETITIONER,
v.
FRANCISCO JACQUEZ, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Anthony Marvell Semien, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a cumulative sentence of life eighty-seven years to life with the possibility of parole following his 2006 jury convictions for evading a police officer with reckless driving, threatening injury to an officer, resisting an officer, and threatening to commit a crime resulting in death or great bodily injury, with penalty enhancements for prior convictions and prior prison terms. Here, Petitioner challenges the constitutionality of his convictions.

II. CLAIMS

Petitioner presents several grounds for relief. Specifically, the claims are as follow:

(1) Trial counsel rendered prejudicially ineffective assistance.

(2) The trial court unlawfully permitted the prosecutor to amend the information several weeks before the commencement of trial to add a charge that was not included in the original complaint.

(3) Appellate counsel rendered prejudicially ineffective assistance.

(4) The prosecutor exercised a peremptory challenge against an African-American juror based upon racial bias, in violation of his rights under Batson v. Kentucky, 476 U.S. 79 (1986) and People v. Wheeler, 22 Cal.3d 148 (1978).

Am. Pet. at 4-6.

Petitioner's ineffective assistance of trial and appellate counsel claims, set forth in his first and third grounds for relief, will be addressed cumulatively in section (V)(A), below. To the extent, however, that Petitioner's ineffective assistance of trial counsel claim also encompasses a challenge to the trial court's denial of his August 9, 2006 motion to substitute counsel, made pursuant to People v. Marsden, 2 Cal.3d 118 (1970)*fn1 , that claim will be discussed separately in section (V)(B). Petitioner's claims alleging improper amendment of the information and use of peremptory challenges, set forth in his second and third and fourth grounds for relief , will be considered in sections (V)(C) and (V)(D), respectively. After careful consideration of the record and the applicable law, it is recommended that each of Petitioner's claims be denied..

III. BACKGROUND

A. FACTS

The basic facts of Petitioner's crime were summarized in the published opinion of the California Court of Appeal, Third Appellate District, as follow:

On February 16, 2006, at 1:18 a.m., two California Highway Patrol (CHP) officers traveling in a marked patrol car on Interstate 80 did a random check on a white Acura and learned its registration had expired, though the car bore a current registration tag. The officers tried to pull the car over, but the Acura sped up, exited the highway, crossed the median, reentered the highway going the opposite direction, and sped up to 100 miles per hour. The Acura exited at Truxel Road, ran a red light, made turns and drove over speed bumps at 50 miles per hour, ran a stop sign, spun out of control, and came to rest on a sidewalk.

Defendant got out of the car and ran, but the officers chased him down and placed him in handcuffs.

Defendant was agitated, yelled obscenities, kicked, and tried to pull away. He said he was going to put up a fight, the officers were "going to kill him tonight." At the patrol car, defendant suddenly slammed his head into the trunk. The officers tried to apply leg restraints, but defendant threatened to kill one of the officers. The officers applied pepper spray to defendant's face in order to secure the leg restraints. They then flushed his eyes with water and took him to the hospital. Defendant tried to spit on the officers and continued to threaten them. At the jail, defendant continued his uncooperative and threatening behavior.

An open bottle of alcohol was found in the Acura, and the passenger smelled of alcohol; defendant was not charged with driving under the influence.

The jury found the defendant guilty on Counts One, Two, Three, and Six (evading a police officer with reckless driving; threatening injury to an officer; resisting an officer; and threats to commit a crime resulting in death or great bodily injury). The jury found defendant not guilty as to Count Four (vandalism) and deadlocked on Count Five (threat of injury to an officer), resulting in a mistrial on Count Five.

In a bifurcated trial, the jury found true the prior conviction and prior prison term allegations.*fn2 The trial court sentenced defendant to prison for 87 years (25 years to life on Count One; consecutive terms of 25 years to life on Counts Two and Six; 25 years on Count Three, stayed under section 654; plus 12 years on the enhancement allegations).

People v. Semien, 162 Cal.App.4th 701, 704-705 (2008).

Petitioner appealed his convictions to the California Court of Appeal, Third Appellate District. The appellate court affirmed his convictions with a reasoned opinion on April 30, 2008. The California Supreme Court denied his petition for review of the appellate court's decision without comment on July 23, 2008. After exhausting the appellate process, Petitioner sought habeas corpus relief in the Yolo County Superior Court. His petition was denied with a brief opinion on May 28, 2008. Petitioner subsequently filed habeas corpus petitions in the California Court of Appeal, Third Appellate District, and the California Supreme Court. Those petitions were denied without comment on February 19, 2009 and August 26, 2009, respectively.

Petitioner filed this federal petition for writ of habeas corpus on July 6, 2009. The action was subsequently stayed at Petitioner's request because several of the grounds alleged in his petition were still pending before the California Supreme Court. Following exhaustion of his claims in state court, the stay was lifted and Petitioner was granted leave to amend his petition. The amended petition was filed on November 6, 2009.*fn3 Respondent filed an answer on July 28, 2010, and Petitioner filed his traverse on August 27, 2010.

IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW

This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

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

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Although "AEDPA does not require a federal habeas court to adopt any one methodology," there are certain principles which guide its application. Lockyer v. Andrade, 538 U.S. 63, 71 (2003)

First, AEDPA establishes a "highly deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Accordingly, when determining whether the law applied to a particular claim by a state court was contrary to or an unreasonable application of "clearly established federal law," a federal court must review the last reasoned state court decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Provided that the state court adjudicated petitioner's claims on the merits, its decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000). Conversely, when it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, AEDPA's deferential standard does not apply and a federal court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Second, "AEDPA's, 'clearly established Federal law' requirement limits the area of law on which a habeas court may rely to those constitutional principles enunciated in U.S. Supreme Court decisions." Robinson, 360 F.3d at 155-56 (citing Williams, 529 U.S. at 381). In other words, "clearly established Federal law" will be " the governing legal principle or principles set forth by [the U.S. Supreme] Court at the time a state court renders its decision." Lockyer, 538 U.S. at 64.

It is appropriate, however, to examine lower court decisions when determining what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000).

Third, the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meanings." Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal court may grant a writ of habeas corpus only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. It is not necessary for the state court to cite or even to be aware of the controlling federal authorities "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). Moreover, a state court opinion need not contain "a formulary statement" of federal law, but the fair import of its conclusion must be consistent with federal law. Id.

Under the "unreasonable application" clause, the court may grant relief "if the state court correctly identifies the governing legal principle...but unreasonably applies it to the facts of the particular case." Bell, 535 U.S. at 694. As the Supreme Court has emphasized, a 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." Williams, 529 U.S. at 410. Thus, the focus is on "whether the state court's application of clearly established federal law is objectively unreasonable." Bell, 535 U.S. at 694 (emphasis added).

Finally, the petitioner bears the burden of demonstrating that the state court's decision was either contrary to or an unreasonable application of federal law. Woodford, 537 U.S. at 24 ; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).

V. DISCUSSION

A. Effective Assistance of Counsel

1. Trial Counsel

Petitioner claims that he was denied the effective assistance of trial counsel in several ways.*fn4 Specifically, Petitioner contends that counsel, Chief Deputy Public Defender for Yolo County, Jessie Morris, Jr., failed to (a) cross-examine a witness at the preliminary hearing; (b) subpoena a witness, Charlie Sparks, to testify on his behalf; and (c) object or move for dismissal, mistrial, or a new trial on the grounds that the charges and instructions read to the jury did not include the names of the victims.

The Sixth Amendment to the United States Constitution guarantees to a criminal defendant the effective assistance of counsel. A showing of ineffective assistance of counsel has two components. See Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must demonstrate that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. In assessing an ineffective assistance of counsel claim, "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance,'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689), and that counsel "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). As the United States Supreme Court recently emphasized, the question for a federal court conducting habeas corpus review under section 2254(d) "is not whether counsel's actions were reasonable." Harrington v. Richter, 131 S.Ct. 770, 788 (2011). "The standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Id. (internal quotations and citations omitted). The determination to be made, therefore, is not whether counsel acted reasonably, but "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

The second factor required for a showing of ineffective assistance of counsel is actual prejudice caused by the deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. See also Williams v. Taylor, 529 U.S. 362, 391-92 (2000); Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). Importantly, on collateral review, a court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If 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).

a. Failure to Cross Examine a Witness at the Preliminary Hearing

Petitioner claims that trial counsel rendered prejudicially ineffective assistance during his preliminary hearing by failing to cross examine prosecution witness Rafael Vicente, a former deputy sheriff with the Yolo County Sheriff's Department. Petitioner argues that Deputy Vicente's testimony was the only evidence linking him to an allegation that he threatened to commit a crime resulting in death and great bodily injury to another person, in violation of section 422 of the California Penal Code. Petitioner further argues that defense counsel should have cross examined Deputy Vincente for impeachment purposes because the deputy's testimony was not based upon his own first-hand observations and was therefore unreliable.

At the preliminary hearing, which took place on May 17 and May 18, 2006, the prosecutor presented two witnesses who testified regarding their observations of the attempt by law enforcement officers to conduct a traffic stop on an Acura sedan ("the Acura"), the ensuing car chase, Petitioner's attempt to evade arrest by fleeing from the Acura on foot, and the agitated, threatening, and uncooperative behavior exhibited by Petitioner while he was being placed under arrest. Following the testimony of the two witnesses, the prosecutor stated that she had one remaining witness who would testify in support of a count not yet charged. This remaining witness, Deputy Vicente, would provide testimony regarding threats made by Petitioner against a correctional officer while during his booking at the Monroe Detention Center following his arrest. The deputy's testimony would support an additional count alleging another violation of section 422 of the California Penal Code.

Defense counsel objected on the grounds that Petitioner had not received adequate notice, as required by the due process clause, of the additional charge and Deputy Vicente's testimony. The prosecutor responded that discovery had been provided to the defense in advance of the preliminary hearing. This discovery included information regarding Petitioner's behavior at the detention center, and the prosecutor indicated that the Deputy Vicente's testimony would not exceed the bounds of discovery. The court continued the preliminary hearing until the following day in order to allow the prosecutor an opportunity to determine why the count had not been charged in the original complaint, as well as to allow defense counsel additional time to prepare for the deputy's testimony.

At the continued preliminary hearing the following day, defense counsel renewed his objection to Deputy Vicente's testimony and to the addition of the uncharged count. The prosecutor explained that the count would have been charged in the original complaint, however the prosecutor who filed that complaint was not yet in possession of Deputy Vicente's official report at the time of filing. The prosecutor did not request leave to amend the complaint, but instead wished to present the evidence so that the count could be included in the information if the court found sufficient evidence to issue a holding order. The prosecutor noted that, in any event, section 1009 of the California Penal Code provided that a complaint could be amended at any stage of the proceedings with leave of the court, so long as it was supported by evidence taken at the preliminary hearing

The court determined that the Deputy Vicente's testimony was admissible because it was transactionally related to counts already charged. In addition, the court reasoned that defense counsel had sufficient notice of the proposed testimony and the related uncharged count because he was in possession of Deputy Vicente's official report well in advance of the preliminary hearing and that counsel had been given an additional twenty-four hours to prepare for the testimony. The court also noted that requiring the prosecutor to file the additional count separately was not an efficient use of judicial resources because it could ultimately be consolidated for trial purposes as it was transactionally related to the counts already charged.

Following the court's ruling, Deputy Vicente testified on direct examination that, on the date of Petitioner's arrest, he was dispatched to the Monroe Detention Center in Yolo County in response to a report that an inmate was threatening a correctional officer. Upon arriving at the detention center, he spoke with three correctional officers. One of the officers told Deputy Vicente that he had been personally threatened by Petitioner while removing him from a cell for in order to complete booking him. The other two officers stated that they witnessed Petitioner threatening the first officer. Deputy Vicente clearly testified on direct examination that he was not present when the threats occurred and his knowledge of the threats derived from the information conveyed to him by the three officers from whom he obtained statements. When given the opportunity to cross examine Deputy Vicente, the following exchange took place between defense counsel and the court:

THE COURT: Mr. Morris?

MR. MORRIS: I renew my objections that I made previously to this witness' testimony. I choose not, at this time, to ask any questions.

And let me indicate that I do that so that I preserve any objections that I make, and I don't wish the nature of any preparation or lack of preparation to enter into the issue of whether the decision that the Court has made with respect to allowing this witness to testify be part of the issue of whether the decision the Court has made with respect to allowing this witness to testify be part of the issues I raise later.

And so all I'm saying is that I choose at this point not to ask questions of this witness.

THE COURT: Are you saying you are unprepared to question him?

MR. MORRIS: I'm saying I choose not to ask any questions.

THE COURT: You are not unprepared?

MR. MORRIS: I choose not to ask questions.

THE COURT: Okay. I'm asking you a question, and

I want an answer: Are you unprepared to ask him questions?

MR. MORRIS: I'll answer it this way: There are times that my client is cooperative with me and there are times that he is not, and the quality of my preparation is such that it involves attorney-client privilege.

And based upon that, I believe I do not have to respond to the Court's question and claim the privilege. THE COURT: You have not said you are unprepared, and that's the answer I am going to take from your comments.

CT at 63-64. Following the preliminary hearing, the court found sufficient evidence to hold Petitioner over on Counts One, Two, Three, Four, and Six as alleged in the First Amended Complaint filed on February 27, 2006. He was also held over on Count Five, but it was reduced from a felony to a misdemeanor. The court found insufficient evidence to hold Petitioner over on Count Seven; consequently he was also not held to answer on the Count Seven (a) enhancement. Lastly, the court found sufficient evidence to issue a holding order as to the initially uncharged count based on the testimony of Deputy Vicente.

With respect to his current claim for federal habeas corpus relief, Petitioner has failed to overcome the strong presumption that trial counsel "exercised acceptable professional judgment" by declining to cross examine Deputy Vicente at the preliminary hearing. See Hughes, 898 F.2d at 702. As the preliminary hearing transcript reflects, counsel clearly explained that he was exercising a choice not to cross examine the deputy, but he nonetheless wished to preserve his objections to the deputy's testimony. Counsel further explained that Petitioner's cooperation with him regarding the preparation of his own defense could be described as inconsistent, at best,*fn5 and that counsel's decision not to cross examine Deputy Vicente, at least in part, was based on information protected by the attorney-client privilege. On this record, it appears that counsel exercised objectively reasonable professional judgment under the circumstances. A reasonable tactical decision by counsel with which Petitioner disagrees cannot form the basis of an ineffective assistance of counsel claim. Strickland, 466 U.S. at 689. Petitioner has thus failed to demonstrate that counsel's failure to cross examine Deputy Vicente at the preliminary hearing constituted deficient performance.

Even assuming that counsel's failure to cross-examine Deputy Vicente fell below an objective standard of reasonableness, Petitioner also fails to demonstrate prejudice. Put another way, Petitioner has not established that the result of the preliminary proceedings would have been different had counsel elected to cross examine Deputy Vicente. Petitioner claims that counsel should have cross examined the deputy in order to demonstrate that his testimony was unreliable because it was based on hearsay. Deputy Vicente clearly testified on direct examination, however, that he did not personally witness Petitioner threaten a correctional officer at Monroe Detention Center and that his testimony was based upon descriptions of the incident as reported to him by other officers. CT at 62. Any cross examination of the deputy regarding his personal knowledge of threats made by Petitioner while he was being booked at Monroe Detention Center, therefore, would merely have been cumulative of testimony already presented by the deputy during direct examination.

Moreover, in California, the purpose of a preliminary hearing is to "establish whether there exists probable cause to believe that the defendant has committed a felony." CAL. PENAL CODE § 866(b). The "probable cause determination may be based entirely on hearsay statements related by a police officer with certain qualifications and experience." Whitman v. Superior Court, 54 Cal.3d 1063, 1070 (1991). Petitioner does not now claim that Deputy Vicente lacked the qualifications or experience required to permit him to offer testimony based on hearsay statements at the preliminary hearing. Thus, it was not improper for the trial court to consider Deputy Vicente's hearsay based testimony in making its determination of whether probable cause existed to believe Petitioner had committed an additional violation of section 422 of the California Penal Code. There is no reasonable probability that the results of Petitioner's preliminary hearing would have been different if trial counsel had impeached Deputy Vicente in the manner now suggested by Petitioner.

Petitioner is not entitled to federal habeas corpus relief on this claim.

b. Failure to Subpoena Charles Sparks to Testify at Trial

Petitioner claims that trial counsel rendered prejudicially ineffective assistance by failing to subpoena Charles Sparks to testify at trial. Petitioner argues that no witness at trial could identify him as the driver of the Acura. According to Petitioner, Mr. Sparks would have testified that he, not Petitioner, was the Acura's driver. Petitioner argues that absent testimony from Mr. Sparks, the jury could only conclude that Petitioner must have been the Acura's sole occupant and the driver who fled from the police. Petitioner contends had Mr. Sparks testified, the prosecution would not have been able to prove an essential element of the offence, that he was driving a motor vehicle and "willfully fled from, or tried to elude" a peace officer and, consequently, the jury would not have been able to find him guilty beyond a reasonable doubt of the offense charged in count one, evading a peace officer. CT at 335.

Petitioner's contention that no witness could identify him as the driver of the fleeing Acura does not accurately reflect the trial testimony of multiple law enforcement officers who did, in fact, identify Petitioner as the Acura's driver. Petitioner also misstates trial testimony regarding the existence of a passenger in the Acura.

California Highway Patrol Officers Darrell Nishimi and David Diaz, the officers who attempted to conduct the initial traffic stop both testified at trial. The two officers were partners; Officer Diaz was driving the patrol vehicle and Officer Nishimi was the passenger. Officer Nishimi testified that when the pursuit began, he could not tell how many people were inside of the Acura. However, after the chase concluded, he observed Petitioner exit from the driver's side of the vehicle, run down the sidewalk, and attempt to climb over a fence. Officer Nishimi exited the patrol vehicle to pursue Petitioner. He ordered Petitioner to stop running and attempted to pull him off of the fence. Instead of stopping, Petitioner spun out of Officer Nishimi's grasp and ran North. Officer Nishimi testified that both he and Officer Diaz ran after Petitioner and eventually both officers succeeded, with the help of another officer, apprehending Petitioner and handcuffing him, despite Petitioner's struggle to resist arrest and his failure to cooperate with the officers. At some point following the struggle, Officer Nishimi made contact with the passenger of the Acura, who identified himself as Charles Wright, a cousin of Petitioner. Officer Nishimi did not suspect the passenger of any wrongdoing at the time, however he later came to believe that the passenger had falsely identified himself.

Similarly, Officer Diaz testified that when the Acura came to a stop, he pulled the patrol vehicle behind and offset to the left of the Acura. Officer Diaz testified that Petitioner was the driver and that he also observed him running away from the vehicle and attempting to jump over a fence. Officer Diaz observed Officer Nishimi run after Petitioner and attempt to pull him off of the fence. When Petitioner spun out of Officer Nishimi's grasp, both officers pursued him. Officer Diaz testified that after Petitioner was handcuffed, he and several other officers made contact with the Acura's passenger. Officer Diaz heard the passenger give identifying information to another officer, however he never independently verified the passenger's identification.

California Highway Patrol Officer Vaughn Parsons testified that, on the night of the incident in question ,he was working a traffic control detail near the location where the chase concluded. He heard over his radio that a pursuit was taking place and proceeded to Truxel Road, where he encountered Officer Nishimi and Officer Diaz struggling with Petitioner. After assisting the other officers to apprehend Petitioner, Officer Parsons testified that he made contact with the Acura's passenger. To Officer Parsons' knowledge, the passenger had committed no wrongdoing that evening that would require police attention. Charles Wright, Petitioner's cousin, appeared by subpoena at trial for identification purposes before Officer Nishimi and Officer Diaz. Neither officer believed Mr. Wright to be the passenger in Petitioner's Acura on the night in question.

The crux of Petitioner's current ineffective assistance of counsel claim rests on counsel's failure to call Charles Sparks to testify at trial following being informed by Petitioner that he was the Acura's other occupant and the person who identified himself to the highway patrol officers as Charles Wright. At the a hearing conducted on August 9, 2006 hearing Petitioner's counsel explained his investigation with respect to Charles Sparks' potential usefulness as a witness and his ultimate determination that Mr. Sparks would not provide testimony beneficial to Petitioner's defense. RT at 115-119. Because Petitioner claimed that Mr. Sparks was actually driving the Acura, counsel sent an investigator to speak with him. According to Mr. Sparks, he was intoxicated and asleep in the backseat of Petitioner's car during the chase. Following Petitioner's arrest, Mr. Sparks was placed into a taxi by police officers and sent home. Mr. Sparks denied being the driver. Based on Mr. Sparks statements to the investigator, counsel made the decision not to subpoena Mr. Sparks for trial, in part because if Petitioner chose to testify, his claim that Mr. Sparks was the driver would directly conflict with Mr. Sparks' claim to have been asleep in the backseat of the Acura during the chase. In addition, Mr. Sparks' statement to the investigator was consistent with Highway Patrol reports that Petitioner drove the Acrua. Counsel also spoke to several of Petitioner's family members who believed that Mr. Sparks was not the driver. Moreover, Petitioner expressed to counsel that he did not want to get Mr. Sparks in trouble for any reason.

Petitioner's ineffective assistance claim as it relates to counsel's failure to summon Mr. Sparks as a witness is without merit because Petitioner has failed to demonstrate that counsel's decision not to summon Mr. Sparks as a witness fell below an objective standard of reasonably competent performance. The record indicates that counsel conducted investigation regarding Mr. Sparks' potential value as a witness in Petitioner's case and determined that he would not testify in a manner consistent with Petitioner's claim that he was the actual driver of the Acura. To the contrary, it appears that Mr. Sparks claimed that he was merely a passenger in the car driven by Petitioner, which is consistent with the testimony provided by the officer witnesses. Once again, a reasonable tactical decision by counsel with which Petitioner disagrees cannot form the basis of an ineffective assistance of counsel claim. Strickland, 466 U.S. at 689. Under these circumstances, it is reasonable to find that counsel satisfied Strickland's highly deferential standard. Harrington, 131 S.Ct. at 778.

Moreover, Petitioner's conclusory allegation that Mr. Sparks would have provided favorable trial testimony is insufficient to demonstrate that trial counsel was ineffective. See Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (no ineffective assistance where the petitioner did "nothing more than speculate that, if interviewed," a witness might have given helpful information); 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, in fact, testify). The burden of demonstrating ineffective assistance of counsel cannot be met without showing that the proposed witness, Mr. Sparks, would be willing to testify. This burden may be established by providing the court with an affidavit from Mr. Sparks detailing what his testimony would have been. Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (no ineffective assistance where there was no evidence in the record that a helpful witness actually existed and the petitioner failed to present an affidavit establishing that the alleged witness would have provided helpful testimony for the defense). Petitioner has supplied no such affidavit in this case and, as noted above, the record indicates that, if anything, Mr. Sparks would have provided testimony in conflict with the defense Petitioner wished to present. Speculation by Petitioner that Mr. Sparks would have testified or that his testimony would have been helpful at trial is insufficient to demonstrate prejudice. Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001).

Petitioner is not entitled to federal habeas corpus relief on this claim.

c. Failure to Object to Jury Instructions

Petitioner claims that trial counsel rendered prejudicially ineffective assistance by failing to object to the jury instructions, which Petitioner argues were ambiguous because they did not specify the victims' names as to Counts Two, Three, Five, and Six. Consequently, Petitioner argues, the state was unable to prove each element of the charged offenses beyond a reasonable doubt. Petitioner contends that counsel's failure to object to the jury instructions or to move for dismissal, mistrial, or a new trial fell below an objective standard of reasonableness and that he was prejudiced by counsel's performance because he should have been acquitted on those charges, rather than convicted.

Petitioner's claim is based, at least in part, on factually incorrect assertions. A review of the record demonstrates that the names of the victims were, in fact, articulated by the trial court while instructing the jury both at the beginning of trial and prior to jury deliberation. Specifically, prior to opening statements by counsel, the court instructed the jury as follows:

THE COURT: Counts 2 and 5, on or about - - there are two separate charges, ladies and gentleman - - on or about February 16, 2006, Anthony Marvell Semien did commit a felony, namely, a violation of Section 71(1) of the California Penal Code, threat of injury made to [an] officer in performance of [his] duties, in that Anthony Marvell Semien, with intent to cause, did willfully and unlawfully attempt to cause and did cause an officer or employee of any public or private educational institution or a public officer or employee to do or refrain from doing an act in the performance of said person's duties by means of a threat directly communicated to such person, to wit, Officer D.N. and Officer D.D., to inflict an unlawful injury upon any person or property and it reasonably appeared to the recipient of the threat that such threat could be carried out. Count 3, on or about February 16th, 2006, Anthony Marvell Semien did commit a felony, namely, a violation of Section 69 of the California Penal Code, resisting [an] executive officer by means of threats, force, or violence, in that Anthony Marvell Semien did willfully and unlawfully attempt, by means of threats and violence, to deter or prevent an executive officer, to wit, Officer D.N., from performing a duty imposed upon such officer by law and did willfully, unlawfully and knowingly resist by the use of force or violence and such officer in the performance of said officer's duties. . . . .

Count 6, on or about February 16, 2006, Anthony Marvell Semien did commit a felony, namely, a violation of Section 422 of the California Penal Code, threats to commit crime resulting in death or great bodily injury, in that Anthony Marvell Semien did willfully and unlawfully threaten to commit a crime which will result in death and great bodily injury to another person, to wit, C.L., with the specific intent that the statement is to be taken as a threat even if there is no intent of actually carrying the threat out, which threat, when taken on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat and thereby cause that person reasonably to be in sustained fear for his or her safety and for his or her immediate family's safety.

RT at 168-170. In addition, the victims were named by the court in the jury instructions given prior to closing argument. The relevant portion of the instructions is as follows:

[THE COURT]: In Count 2, the alleged victim is identified by the initials D.N. That would be Officer Nishimi. And in Count 5, the alleged victim is identified by the initials D.D. That would be Officer Diaz who's alleged to have been the victim in that case. . . . .

The People have the burden of proving beyond a reasonable doubt that Darrell Nishimi and Dave Diaz were each performing their duties as a peace officer. If the People have not met this burden, you must find the defendant is not guilty of Counts 2, 3 and 5 . . . .

The defendant is charged in Count 6 with having made a criminal threat. To prove that the defendant is guilty of this crime, the people must prove: one, the defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to Calvin Losh

RT at 478-485. Petitioner is thus mistaken when he claims that the jury instructions did not specify the victims' names.

In any event, even had the jury instructions not specified the victims' names as to each of Counts 2, 3, 5, and 6, all of which alleged crimes against a person, there is no reasonable probability that the outcome of Petitioner's trial would have been different had counsel objected or moved for a dismissal of the charges, a mistrial or a new trial on those grounds. Moreover, on the record in this case, there is no reasonable probability that the jury instructions, as given, confused the jurors regarding the prosecution's burden to prove each element of each alleged count beyond a reasonable doubt or that it was unclear to the jurors that Officer Nishimi, Officer Diaz, and Officer Losh were alleged to be the victims of Counts 2, 3, 5, and 6. Indeed, substantial evidence was presented at trial, including the testimony of those three alleged victims, which supported the jury's guilty verdicts. Thus, even assuming arguendo that counsel's conduct fell below an objective standard of reasonableness, Petitioner has failed to demonstrate that he suffered any prejudice as a result.

Petitioner is not entitled to federal habeas corpus relief on this claim.

2. Appellate Counsel

Petitioner claims that counsel rendered prejudicially ineffective assistance by failing to raise the following issues on appeal: (a)the trial court violated Petitioner's constitutional rights by imposing consecutive sentences for his multiple convictions; (b) the jury instructions failed to specify by name the alleged victims; (c) any of the seven appealable issues identified in the notice of appeal filed by trial counsel. In addition, Petitioner claims that appellate counsel's performance fell below objectively reasonable standards because she (d) failed to augment the appellate record with the transcript of his May 16, 2006 Marsden hearing until June 9, 2008,*fn6 after the appellate court had already affirmed his convictions; and (e) did not timely file a reply brief on appeal.

The Strickland standards discussed above apply to appellate counsel as well as trial counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). An indigent defendant "does not have a constitutional right to compel appointed counsel to press non-frivolous points requested by the client if counsel, as a matter of professional judgment, decides not to present those points." Jones v. Barnes, 463 U.S. 745, 751 (1983).*fn7 "Counsel must be allowed to decide what issues are to be pressed." Id. Otherwise, the ability of counsel to present the client's case in accord with counsel's professional evaluation would be "seriously undermined." Id. See also Smith v. Stewart, 140 F.3d 1263, 1274 n.4 (9th Cir. 1998) (counsel was not required to file "kitchen-sink briefs" because it "is not necessary, and it is not even particularly good appellate advocacy."). There is, of course, no obligation to raise meritless arguments on a client's behalf. See Strickland, 466 U.S. at 687-88 (requiring a showing of deficient performance as well as prejudice). Thus, counsel is not deficient for failing to raise a weak issue. See Miller, 882 F.2d at 1434. In order to demonstrate prejudice in the appellate context, Petitioner must show that, but for appellate counsel's errors, he would likely have prevailed on appeal.

a. Consecutive Sentencing

Petitioner claims appellate counsel rendered prejudicially ineffective assistance by failing to raise a claim on direct appeal that the trial court improperly imposed consecutive sentences for his convictions based on enhancements that should have been applied only once instead of on each count, thus violating his right not to be subject to double jeopardy. In addition, Petitioner claims that appellate counsel should have raised an ineffective assistance of trial counsel claim based on trial counsel's failure to object to the sentence imposed on the same grounds.

To the extent that Petitioner argues that the trial court violated federal law by imposing consecutive sentences, such a claim is beyond the scope of federal habeas corpus review. See Cacoperdo v. Desmosthenes, 37 F.3d 504, 507 (9th Cir. 1994) ("The decision to impose sentences concurrently or consecutively is a matter of state criminal procedure and is not within the purview of federal habeas corpus."); accord Souch v. Shaivo, 289 F.3d 504, 507 (9th Cir. 2002) ("Because the trial court actually had absolute discretion to impose either consecutive or concurrent sentences[,] . . . neither an alleged abuse of discretion by the trial court in choosing consecutive sentences, nor the trial court's alleged failure to list reasons for imposing consecutive sentences, can form the basis for federal habeas relief." (emphasis in original)). Petitioner's double jeopardy claim is discussed below.

Petitioner stands convicted of four of the six charges he faced. First, he was convicted of evading a peace officer with reckless driving, in violation of CAL. PENAL CODE § 2800.2(a), based on his failure to yield to the attempted traffic stop conducted by Officer Nishimi and Officer Diaz. Second, he was convicted of making threats of injury to Officer Nishimi while in the performance of his duties, more specifically while the officer was in the process of arresting Petitioner, in violation of CAL. PENAL CODE § 71(1). His third conviction was for resisting Officer Nishimi's attempt to arrest him by means of force or violence, in violation of CAL. PENAL CODE § 69. Fourth, Petitioner was convicted of making threats to commit a crime resulting in death or great bodily injury to Officer Losh, in violation of CAL. PENAL CODE § 422.

In addition, the jury found true all alleged sentencing enhancements. Thus, the jury found true the allegations that Petitioner had suffered two prior strikes, CAL. PENAL CODE § 667(e)(2), based on his 1993 conviction for rape and his 1997 conviction for assault; two prior serious felony convictions, again based on his 1993 and 1997 convictions, CAL. PENAL CODE § 667(a)(1); and two prior prison commitments, CAL. PENAL CODE § 667.5(b).

The prosecution conceded that sentencing should be stayed on either Petitioner's conviction under section 71(1) or section 69 because both convictions were based on the same underlying facts and thus would likely subject Petitioner to double jeopardy under CAL. PENAL CODE § 654(a), which provides that an "act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Accordingly, Petitioner was sentenced to consecutive terms of twenty-five years to life on each count, with imposition of the sentence for section 69 stayed pursuant to section 654, totaling seventy-five years to life. Likewise, sentencing enhancements were imposed for consecutive terms of five years for each of Petitioner's two prior convictions, CAL. PENAL CODE § 667(a)(1), and one year for each of Petitioner's two prior prison commitments, totaling twelve additional years. No sentence enhancement was imposed based upon Petitioner's two prior strikes, CAL. PENAL CODE § 667(e)(2), which were based on the same underlying convictions as the sentence enhancements imposed based upon two prior serious felony convictions, CAL. PENAL CODE § 667(a)(1). Petitioner's aggregate sentence was thus eighty-seven years to life with the possibility of parole.

The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb. U.S. CONST. AMEND. V. The provision protects against a second prosecution for the same offense and multiple punishments for the same offense. Witte v. United States, 515 U.S. 389, 396 (1995); United States v. Wolfswinkel, 44 F.3d 782, 784 (9th Cir. 1995). Sentence enhancements, however, do not "punish" a defendant within the meaning of double jeopardy. United States v. Watts, 519 U.S. 403 (1997). Rather, they increase the given sentence because of the manner in which the crime was committed. Id. "[T]he defendant is punished only for the fact that the present offense was carried out in a manner that warrants increased punishment." Id. at 155 (quoting Witte, 515 U.S. at 403).

To the extent that Petitioner's double jeopardy argument is based on an allegation that he was punished multiple times for the same offense, he is incorrect. First, his conviction and the punishment imposed for evading a peace officer is based upon his failure to respond to an attempted traffic stop and the subsequent police chase which ensued. Petitioner's convictions for threatening Officer Nishimi and for resisting Officer Nishimi's attempt to arrest him are based upon his behavior following the conclusion of the car chase in which Petitioner was verbally abusive and physically violent toward the officer. Although these convictions are based on the same underlying conduct, a double jeopardy violation was avoided by the trial court's decision to stay punishment on Petitioner's conviction for resisting arrest. Petitioner's conviction for threatening Officer Losh is based on his behavior at the jail while being booked. Likewise, although the jury found all alleged sentencing enhancements to be true, the court did not impose penalties on both sets of enhancements based on Petitioner's 1993 and 1997 convictions. Accordingly, Petitioner's sentence does not impose upon him multiple punishments for the same offense, and does not run afoul of the protections provided by the Double Jeopardy Clause.

Petitioner asserts that appellate counsel rendered ineffective assistance for failing to raise his double jeopardy claim on direct appeal and for failing to raise an ineffective assistance of trial counsel claim on the same grounds. For the reasons stated above, however, Petitioner's allegations do not raise a valid claim of double jeopardy. It is thus clear that a double jeopardy claim or an ineffective assistance of trial counsel claim based on double jeopardy would have been without merit. Accordingly, appellate counsel did not render ineffective assistance in not raising the issue. See Strickland, 466 U.S. at 687-88 (appellate counsel is not ineffective for failing to raise a meritless issue).

Petitioner is not entitled to federal habeas corpus relief on this claim.

b. Jury Instructions

Petitioner claims that appellate counsel rendered prejudicially ineffective assistance by failing to raise a claim on appeal that the jury instructions did not include the names of his alleged victims as well as a claim that trial counsel rendered ineffective assistance by failing to object to the jury instructions on these same grounds. The merits underlying this claim have already been discussed extensively and rejected above with regard to Petitioner's claim that trial counsel rendered ineffective assistance for failing to raise the same claim at trial. Because the claim is without merit, appellate counsel's decision not to raise it on appeal cannot fall outside the bounds of reasonably competent professional assistance. As noted above, there is no obligation to raise meritless arguments on behalf of a client. See Strickland, 466 U.S. at 687-88. By the same reasoning, Petitioner has failed to demonstrate that he suffered any prejudice as a result of counsel's alleged error because there is no likelihood that the claim would have been successful on appeal.

Petitioner is not entitled to federal habeas corpus relief on this claim.

c. Notice of Appeal

Petitioner claims that appellate counsel rendered prejudicially ineffective assistance by failing to raise any of the seven claims identified as appealable issues by Petitioner's trial attorney in his notice of appeal. In his traverse, however, Petitioner clarifies that he did not expect or intend counsel to appeal based on all non-frivolous grounds raised in his notice of appeal. Rather, Petitioner complains that counsel should have pursued a claim that trial counsel rendered prejudicially ineffective assistance by failing to object to the consecutive sentencing terms imposed for his convictions and for failing to object to the jury instructions because they lacked the names of the alleged victims. In addition, it appears that Petitioner wished for appellate counsel to claim on appeal that the trial court's denial of his Marsden motion caused him to receive ineffective assistance of trial counsel, as well as a claim that the jury instructions given at trial were insufficient because they did not specify the victims' names. According to Petitioner, had counsel appealed on these grounds, his conviction would have been reversed. Instead, however, Petitioner argues that appellate counsel raised what he considers to be two frivolous claims on appeal.

The merits of the claims based on consecutive sentencing and jury instructions which now form the basis for Petitioner's ineffective assistance of appellate counsel claim have been discussed extensively and rejected above. In addition, the merits of Petitioner's Marsden claim is fully addressed on the merits and rejected in subsection (V)(B), below. Because these claims are without merit, Petitioner has failed to demonstrate that appellate counsel's performance was deficient because she was under no obligation to raise meritless arguments on appeal. See Strickland, 466 U.S. at 687-88. Moreover, once again, there is no indication that Petitioner suffered any prejudice as a result of appellate counsel's alleged errors because Petitioner does not establish that any of the claims would have been successful on appeal.

To the extent that Petitioner claims that appellate counsel was obligated to raise any of the claims identified in trial counsel's notice of appeal and instead raised what Petitioner considers to be two "frivolous" claims, this argument is also without merit. Appellate counsel's decision to raise other issues that she believed, in her professional judgment, had more merit than the claims suggested by Petitioner was clearly "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970). Jones, 463 U.S. at 751-52 (Appellate counsel has no constitutional duty to raise every issue where, in the attorney's judgment, the issue has little or no likelihood of success.). Indeed, "appellate counsel who files a merits brief need not (and should not) raise every non frivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 285 (2000). As the Ninth Circuit has observed:

In many instances, appellate counsel will fail to raise an issue because she forsees little or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the hallmarks of effective advocacy . . . . Appellate counsel will therefore frequently remain above an objective standard of competence (prong one) for the same reason-because she declined to raise a weak issue.

Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Thus, given the broad discretion afforded appellate counsel in exercising professional judgment with respect to which claims should be pursued on appeal, the presumption that appellate counsel has provided effective assistance is overcome "only when ignored issues are clearly stronger than those presented." Id. at 288. (citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). Petitioner has failed to demonstrate that any of the claims specified above or identified in trial counsel's notice of appeal were stronger than the two claims appellate counsel chose to present on appeal. Petitioner's disagreement with what appears to be a reasonable tactical decision by counsel in selecting grounds for appeal cannot form the basis for federal habeas corpus relief. Strickland, 466 U.S. at 689. See also Jones, 463 U.S. at 754 ("For ...


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