The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER: (1) GRANTING IN PART AND DENYING IN PART REQUEST TO AMEND THE PETITION; (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND (3) ISSUING A CERTIFICATE OF APPEALABILITY
Petitioner is a California prisoner serving a sentence of 40 years-to-life in state prison following convictions in the San Diego County Superior Court for murder, kidnaping, assault with a firearm, and false imprisonment. On September 27, 2001, Petitioner constructively filed a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 presenting four claims: (1) insufficient evidence to support the convictions; (2) ineffective assistance of trial counsel for failing to investigate and interview potential alibi witnesses; (3) prosecutorial misconduct in using false evidence to establish a motive; and (4) ineffective assistance of appellate counsel for failing to raise the prosecutorial misconduct claim on appeal.*fn2 (Pet. [Doc. No. 1] at 6-9.) The Court ordered expansion of the record (Doc. Nos. 42, 47), appointed counsel to represent Petitioner (Doc. No. 52), and held an evidentiary hearing limited to the alibi aspect of the ineffective assistance of trial counsel claim. (Doc. Nos. 82-83.) In a post-evidentiary hearing brief, Petitioner's appointed federal habeas counsel identified numerous additional allegations of deficient performance of trial counsel, including two additional alibi witnesses who were not contacted by trial counsel, and requested, in a footnote, actual or constructive amendment of the Petition to include an ineffective assistance of counsel claim predicated on the individual and cumulative effect of trial counsel's errors. (Doc. No. 84 at 17 n.21.) On November 17, 2004, judgment was entered denying habeas relief on the merits of the claims in the Petition and Traverse, but without addressing the new allegations of deficient performance or the request to amend the Petition. (Doc. No. 93.)
On September 13, 2006, the Ninth Circuit affirmed in part, reversed in part, dismissed in part, and remanded. (Doc. No. 109.) The Court affirmed the denial of habeas relief in all respects with the exception of that aspect of the ineffective assistance of trial counsel claim which relied on the two new potential alibi witnesses, and remanded with instructions to hold another evidentiary hearing and to make specific findings with respect to trial counsel's reason for not contacting those two individuals. (Id. at 2-6.) With respect to the new ineffective assistance claim predicated on allegations which were not presented to the state courts, the Ninth Circuit found that is was "barred from considering the merits" of the claim, and dismissed the appeal "without prejudice to the extent it raises this unexhausted claim." (Id. at 6-7.)
On February 27, 2009, the Court granted Petitioner's stay and abeyance motion, nunc pro tunc to January 28, 2008, the date it was filed. Petitioner, through his appointed federal habeas counsel, returned to state court to exhaust three claims: (1) a claim alleging a sentencing issue;
(2) a claim alleging "it appears highly likely" that the prosecution failed to disclose forensic evidence and evidence regarding kidnap victim Williams' injuries in violation of Brady v. Maryland, 373 U.S. 83 (1963); and (3) an ineffective assistance of trial counsel claim relying on the individual and cumulative effect of the numerous new allegations of deficient performance. (Doc. No. 118.) Petitioner states that he intentionally excluded the alibi aspect of the ineffective assistance of trial counsel claim in the state court exhaustion petition, as well as any reference to the two new alibi witnesses. (Doc. No. 152 at 4.) However, as part of the cumulative ineffective assistance claim raised in the exhaustion petition, Petitioner alleged that trial counsel lied at the federal evidentiary hearing regarding what he knew about the two new alibi witnesses and when he knew it. (Pet.'s Ex. vol. VI [Doc. No. 132] at 2018-19.)
The state trial court denied the ineffective assistance of counsel claim and the Brady claim on their merits, and also found that the new allegations of deficient performance were evident from the trial transcript and should have been raised on appeal. (Pet.'s Ex. vol. V [Doc. No. 131] at 1764-71.) The appellate court summarily denied the new Brady claim and the new ineffective assistance claim, but granted relief on the sentencing claim and reduced Petitioner's sentence from 55 years-to-life to 40 years-to-life. (Resp.'s Lodgment K; Pet.'s Ex. vol. VI at 2096-2106.) Exhaustion was completed as to the ineffective assistance and Brady claims on October 14, 2009, when the state supreme court denied the exhaustion petition with an order which stated: "The petition for writ of habeas corpus is denied. (See In re Robbins (1998) 18 Cal.4th 770, 780; In re Clark (1993) 5 Cal.4th 750.)" (Pet.'s P&A Ex. vol. VI at 2095.) Review ended with respect to the sentencing claim on May 12, 2010. (Id. at 2110.)
On July 2, 2010, Petitioner filed a Memorandum of Points and Authorities with Respect to Now Exhausted Issues ("Pet.'s P&A") in which he seeks to present the newly exhausted ineffective assistance of trial counsel claim and the newly exhausted Brady claim. (Doc. No. 123 at 7, 26.) Petitioner requests that the Court order Respondent to respond to his new claims, and to hold an evidentiary hearing and permit discovery regarding whether Brady material was withheld. (Id. at 67-68.) Although Petitioner has not actually filed an amended Petition, he has submitted several volumes of "Documents in Support of Amended Petition," and requests the Court to recognize the original Petition as having been constructively amended to include the newly exhausted claims. (Id. at 26; Doc. Nos. 124-33.) The case was transferred to the undersigned Judge on March 14, 2011, and Respondent was thereafter directed to respond to Petitioner's Memorandum. (Doc. Nos. 134-35.)
On June 10, 2011, Respondent filed an Opposition ("Resp.'s Opp."), characterizing Petitioner's Memorandum as a motion to amend the Petition, and arguing that leave to amend should be denied as futile since the claims are procedurally defaulted by virtue of the state court's imposition of procedural bars against untimely and successive petitions. (Doc. No. 138.) Respondent also argues that the one-year statute of limitations has expired on the new claims because Petitioner waited over a year after discovering them before requesting amendment of the Petition, and because they do not relate back to the original, timely Petition. Respondent also argues that the intervening opinion in Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388 (2011) (holding that a federal habeas court may only consider evidence presented in the state court in determining whether a petitioner has satisfied 28 U.S.C. § 2254(d)(1)), precludes another evidentiary hearing despite the Ninth Circuit's directions on remand.
Petitioner has filed a Reply ("Pet.'s Reply") in which he agrees that Pinholster, which was announced after he filed his Memorandum, precludes another evidentiary hearing, and further argues that Pinholster precludes this Court from considering the evidence already developed at the federal evidentiary hearing. (Doc. No. 152 at 10-13.) He contends, however, that the law of the case doctrine requires issuance of the writ because United States District Judge Roger Benitez, who presided over the evidentiary hearing and entered the original order denying habeas relief, has already found that habeas relief is appropriate based on the evidence that was before the Court prior to the evidentiary hearing. (Id. at 7-9, 13-17.) Petitioner also contends his original Petition has already been amended to include the new claims. (Id. at 20-21, 38-40.) With respect to the one-year statute of limitations, Petitioner contends that he only discovered the more serious new allegations of deficient performance when he reviewed trial counsel's file in late 2003 in preparation for the March 2004 federal evidentiary hearing. (Id. at 20.) He argues that there has been no delay in presenting the new Brady claim to the state courts because he is still not sure of the factual basis for that claim, and requests discovery to determine whether evidence was withheld. (Id. at 36-37.) Finally, Petitioner contends that equitable considerations weigh against finding a procedural default, that California's timeliness bar is not independent of federal law nor adequate to support the state court judgment, and that in any case he can establish cause, prejudice, and the existence of a fundamental miscarriage of justice sufficient to excuse any default. (Id. at 17-36.)
For the following reasons, the Court recognizes that the Petition has been constructively amended to include the newly exhausted claims as of the date the Court granted Petitioner's stay and abeyance motion, but not at an earlier date as argued by Petitioner. However, even assuming an earlier date of amendment, the vast majority of the newly exhausted claims have not been presented to this Court within the one-year statute of limitations. Furthermore, even if Petitioner could establish that the newly exhausted claims are timely, they are procedurally defaulted and lacking in merit. The Court finds that Pinholster precludes the Court from conducting another evidentiary hearing irrespective of the Ninth Circuit's instructions on remand, or from considering the evidence adduced at the evidentiary hearing previously held. Rather, Pinholster requires the Court to re-examine the previous denial of habeas relief as to the sole remaining claim presented in this action, which alleges ineffective assistance of counsel for failure to investigate and interview potential alibi witnesses, and to review that claim based solely on the state court record under the standard announced in the intervening decision in Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 786 (2011) (holding that when reviewing a summary denial of an ineffective assistance of counsel claim under 28 U.S.C. § 2254(d), "a habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.") The Court rejects Petitioner's contention that Judge Benitez has already ruled that habeas relief is appropriate or available based on the state court record. The Court reaffirms without reexamination the previous denial of the other claims in the Petition and Traverse, which were denied on the basis of the state court record and affirmed by the Ninth Circuit. Finally, the Court issues a Certificate of Appealability with respect to all claims and issues encompassed in this action.
II. Amendment of the Petition
Respondent argues that the Petition has never been amended to include the newly exhausted claims, and opposes amendment as futile since the new claims are untimely and procedurally defaulted. (Resp.'s Opp. at 7-16.) Petitioner replies that the Ninth Circuit constructively amended the Petition to include the new claims, and the Petition was amended at the latest when the stay and abeyance motion was granted. (Pet.'s Reply at 38-40.)
Federal Rule of Civil Procedure 15(a) provides that, other than when amendment is available as of right, which does not apply here, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a); see 28 U.S.C. § 2242 (stating that a habeas petition "may be amended or supplemented as provided in the rules of procedure applicable to civil actions."). A district court should consider factors such as "bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
Respondent contends that Petitioner did not request leave to amend the Petition to include the newly exhausted claims during the year prior to the evidentiary hearing held in March 2004, when they were presumably discovered. (Resp.'s Opp. at 11-12.) Respondent also contends that Petitioner knew the factual basis of the new claims well before the Court denied the Petition in November 2004, and well before the Ninth Circuit issued its order in September 2006, but still did not seek leave to amend. (Id.)
Petitioner replies that he requested amendment of the Petition in his June 2004 post-evidentiary hearing brief, and the Ninth Circuit recognized in its order that the Petition had been amended because "it could not dismiss something that was never incorporated in the petition." (Pet.'s Reply at 20-21, 38-40.) He argues that the Petition was amended at the latest when his stay and abeyance motion was granted, because only a petition containing both exhausted and unexhausted claims could have been held in abeyance while this action was stayed. (Id.)
The first request for constructive or actual amendment of the Petition was presented in a footnote in the post-evidentiary hearing memorandum filed by Petitioner's appointed federal defender on June 16, 2004. (See Doc. No. 84 at 17 n.21; Pet.'s Reply at 20.) There is no indication in the record why that request was not addressed by the Court, although it certainly would have been proper for the Court to reject the request on the basis that it was contained in a footnote in a brief rather than presented as a separate motion. See e.g. Marquette v. Belleque, 2010 WL 4235889 at *2 (D.Or. 2010) (denying a request to amend habeas petition contained in a footnote of a supporting memorandum drafted by a federal defender appointed to represent a petitioner who had filed a pro se petition, noting that the request violated habeas Rule 2(c), the court's local rules, and defied traditional motions practice), citing Rule 2(c), Rules foll. 28 U.S.C. § 2254 (requiring habeas petitions to "specify all the grounds for relief available to the petitioner"), and Greene v. Henry, 302 F.3d 1067, 1070 n.3 (9th Cir. 2002) (holding that a court need not consider claims presented in memorandum filed in the district court but not raised in the petition); see also SO. DIST. CA. LOCAL RULE 15.1 (requiring that an amended pleading "must be retyped and filed so that it is complete in itself without reference to the superceded pleading.")
Although Petitioner's footnoted request for amendment was not specifically addressed by the Court prior to entering judgment, it is clear that the Court did not sub silentio grant leave to amend as Petitioner contends, because if this Court had permitted amendment of the Petition at that time it would have become a "mixed" petition, that is, one containing both exhausted and unexhausted claims. See Greene, 302 F.3d at 1070 n.3 (noting that because the claims sought to be included in the petition were not exhausted, "had they been made in the federal habeas petition, they would have made it a mixed petition, and could not have been considered."), citing Rose v. Lundy, 455 U.S. 509, 514, 520-21 (1982) (holding that "a district court must dismiss such 'mixed' petitions, leaving the petitioner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court.") There is no indication that this Court treated the Petition as mixed after Petitioner filed his post-evidentiary brief, because the Court did not deny (or even address) the unexhausted claims in its order denying the Petition. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); but see AcostaHuerta v. Estelle, 7 F.3d 139, 142 (9th Cir. 1992) (holding that a district court can reach the merits of an unexhausted claim under § 2254(b)(2) only when the Court determines it does not present a colorable claim for relief). Rather, because this Court later granted stay and abeyance as to these claims, which, as discussed below, necessarily required a determination that the claims are not "plainly meritless," it is not possible that this Court sub silentio denied the unexhausted claims under § 2254(b)(2). Acosta-Huerta, 7 F.3d at 142; see Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987) ("A claim is colorable if it is not wholly insubstantial, immaterial, or frivolous."); see e.g. Johnson v. Sullivan, 2006 WL 37037 at *2 (C.D. Cal. 2006) (recognizing that the stay and abeyance "plainly meritless" standard is the same as the "colorable claim" standard of Cassett v. Stewart, 406 F.3d 614, 623 (9th Cir. 2005) (holding that "a federal court may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant does not raise even a colorable claim.")).
This conclusion is further supported by the Ninth Circuit's order, which, instead of addressing whether this Court had properly determined that the unexhausted claims were not colorable, stated that it was "barred from considering the merits" of the unexhausted claims. (Doc. No. 109 at 7.) The Ninth Circuit would likely not have affirmed in part this Court's denial of habeas relief had the Petition been mixed. See Pliler v. Ford, 542 U.S. 225, 230 (2004) (holding that "federal district courts must dismiss mixed habeas petitions."), citing Rose, 455 U.S. at 514, 520-21; see also Valerio v. Crawford, 306 F.3d 742, 769-70 (9th Cir. 2002) (recognizing rare exception to Rose rule applicable only to appellate courts, and indicating that "the strictness of the prohibition against ruling on claims in mixed petitions is primarily directed at the district courts."), citing Granberry v.Greer, 481 U.S. 129, 131, 134 (1987) (holding that the interests of justice may be better served in "some cases in which it is appropriate for an appellate court to address the merits of a habeas corpus petition, notwithstanding the lack of complete exhaustion.") It is clear that the Petition was not mixed at the time this Court denied habeas relief, and the Petition had therefore not been amended at that time.
Petitioner argues that when addressing a claim of ineffective assistance of counsel, as the Court did when ruling on the merits of his Petition, the Supreme Court has indicated that "it is advisable to consider counsel's overall performance." (Pet.'s Reply at 21, citing Kimmelman
v. Morrison, 477 U.S. 365, 386 (1986) ("It will generally be appropriate for a reviewing court to assess counsel's overall performance throughout the case in order to determine whether the 'identified acts or omissions' overcome the presumption that a counsel rendered reasonable professional assistance."), quoting Strickland v. Washington, 466 U.S. 668, 689 (1984) (holding that in order to show constitutionally ineffective assistance of counsel, a petitioner must show
"that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and that counsel's deficient performance prejudiced the defense by demonstrating a reasonable probability that the result of the proceeding would have been different absent the error.)) Petitioner contends the new allegations of deficient performance were promptly and properly raised, and were highly relevant to the ineffective assistance of trial counsel claim which was then pending, but Respondent did not object after being placed on notice that the new allegations of deficient performance had effectively amended the original ineffective assistance claim. (Pet.'s Reply at 21.)
Petitioner is correct that Respondent did not at that time object that Petitioner was attempting to raise new, unexhausted claims. However, there does not appear to have been any reason for Respondent to have done so, as the Court had not ruled on Petitioner's procedurally improper request to amend, did not address the unexhausted claims in its order denying the Petition, and did not recognize the Petition as containing any unexhausted claims. Petitioner in fact recognized the Petition had not been amended when he argued in his Notice of Appeal that he "seeks to appeal the district court's sub silentio denial of his motion to amend, or the failure to rule on that request." (Doc. No. 97 at 3.) Furthermore, Kimmelman's direction to consider counsel's overall conduct does not excuse Petitioner's failure to present the new allegations of deficient performance to the state courts. See e.g. Rhines v. Weber, 544 U.S. 269, 276-77 (2005) (providing a "simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court."), quoting Rose, 455 U.S. at 520.*fn3
It was the procedurally improper manner in which Petitioner requested amendment and not a failure by Respondent to object which resulted in Petitioner's failure to secure amendment of the Petition before judgment was entered. Petitioner's contention of inequity in this regard is not well taken, and the Court will not recognize the Petition as having been amended as a result of his first footnoted request. In any event, as discussed below, the statute of limitations expired for the vast majority of the new claims in December 2002, and amendment as of Petitioner's June 2004 footnoted request would not save those new claims from the running of the statute of limitations.
Petitioner's next request to amend the Petition was presented in the motion for stay and abeyance filed on January 28, 2008, where counsel for Petitioner argued, again in a footnote, that the Ninth Circuit had effectively granted his motion to amend the Petition in its September 13, 2006, order, but if this Court did not agree, then he "moves to amend." (Doc. No. 113 at 2 n.1.) The stay and abeyance motion was summarily granted without addressing Petitioner's argument and without reference to his footnoted "motion" to amend. (Doc. No. 118.) Petitioner argued then, as now, that the Ninth Circuit must have recognized that the Petition had been amended to include the new claims because it dismissed them without prejudice. (Pet.'s Reply at 38.)
If the Ninth Circuit had recognized that the Petition had been amended to include the new unexhausted claims, as Petitioner contends, the Ninth Circuit would likely have remanded with instructions to dismiss the mixed petition or afford Petitioner options to avoid dismissal, rather than to have affirmed the denial of habeas relief as to all claims other than the two new alibi witnesses, remanded for an additional evidentiary hearing with respect to those two individuals, and dismissed the appeal as to the unexhausted claims. Rose, 455 U.S. at 514, 520-21. The Ninth Circuit likely recognized that the allegations that trial counsel failed to contact the two new additional alibi witnesses (one who was mentioned in the original state proceedings and both of whom, as discussed below, could merely corroborate the alibi provided by the potential alibi witnesses identified in the Petition) were timely because, as set forth below, they clearly relate back to the claim in the original, timely Petition alleging counsel was ineffective for failing to contact the three potential alibi witnesses identified in the original Petition, and were exhausted because they did not change the nature of that claim. See Aiken v. Spalding, 841 F.2d 881, 884 n.3 (9th Cir. 1988) (holding that new evidence presented by a federal habeas petitioner which was not presented to the state courts renders a claim unexhausted where it "places his claim in a significantly different and stronger evidentiary posture than it had when presented in state court."), citing Vasquez v. Hillery, 474 U.S. 254, 259 (1986) (holding that new factual allegations presented to a federal habeas court in support of a claim already presented to the state courts will render the claim unexhausted if the new allegations "fundamentally alter the legal claim already considered by the state courts.")
As set forth below, the Court agrees with Petitioner that the addition of the two new alibi witnesses did not place the original ineffective assistance of trial counsel claim in a significantly different or stronger evidentiary posture, or fundamentally alter the nature of the claim. Moreover, the Ninth Circuit's order here did not "dismiss" the unexhausted claim which relied on the new allegations of deficient performance as Petitioner contends, or rule upon it at all, but "dismiss[ed] the appeal" as to that claim after finding that it was "barred from considering [its] merits." (Doc. No. 109 at 7); see Ahiswede v. Wolff, 720 F.2d 1108, 1109 (9th Cir. 1983) ("[T]he only issues properly before this court are those that are in the petition.").) Thus, the Ninth Circuit did not recognize the Petition as having been amended to include the unexhausted ineffective assistance claim predicated on the new allegations of deficient performance, and the Court denies Petitioner's request to recognize constructive amendment of the Petition as of the September 13, 2006 Ninth Circuit order.
The Court agrees with Petitioner's final argument that the Petition was constructively amended as of this Court's February 27, 2009, order granting stay and abeyance. (Pet.'s Reply at 39-40.) That order granted stay and abeyance nunc pro tunc to January 28, 2008. (Doc. No. 118.) Petitioner requested stay and abeyance under the Rhines procedure, which holds a mixed petition in abeyance while a petitioner returns to state court to exhaust, after the petitioner has demonstrated good cause for the failure to timely exhaust and after a determination has been made that the claims are not on their face "plainly meritless." Rhines, 544 U.S. at 277-78.
In opposing Petitioner's motion, Respondent contended that Rhines procedure was not appropriate because the Petition was not mixed. (See Doc. No. 114 at 1-4.) The summary order granting stay and abeyance does not provide any information regarding the basis for granting the motion. (Doc. No. 118.) There is understandable reliance by Petitioner that by granting his Rhines stay and abeyance motion the Court determined that the Petition had been constructively amended, nunc pro tunc to January 28, 2008, to include the claims which Petitioner intended to return to state court and exhaust. Respondent was likewise on notice that the Court had impliedly recognized such an amendment, and Respondent did not seek clarification of the order. However, even if there were sub silentio findings in that order that the Petition had been constructively amended and Petitioner had shown good cause for the failure to timely exhaust claims which were not facially meritless, the Court will not read into that order sub silentio findings that the new claims necessarily relate back to the original petition or were timely under the one-year statute of limitations. Rather, those issues are considered below.
The Court GRANTS in part and DENIES in part Petitioner's request for amendment. The Court finds that the Petition was constructively amended on February 27, 2009, nunc pro tunc to January 28, 2008, to include the new ineffective assistance of trial counsel claim predicated on the individual and cumulative effect of the new allegations of deficient performance, and the new Brady claim alleging it appears likely the prosecutor withheld evidence.
III. Factual and Legal Background
Prior to addressing the procedural default and statute of limitations issues which, as discussed below, require comparison between the newly exhausted claims and the claims presented in the Petition and Traverse, as well as a determination regarding whether the new allegations of deficient performance rise to the level of a constitutional violation, and in order to provide context, the Court will review the evidence presented at trial. The Court will then review the basis for the adjudication of the claims presented in the Petition and Traverse by the state appellate court, the state supreme court, this Court, and the Ninth Circuit.
Sarena "Mimi" Haley, Lasean "Rebloc" Harriel, April Davis, Evangalina "Vangie" Tei, and Avion "Tootie" Tuimalo were with Petitioner (aka "Fango") and James "Baby Gangster" Williams at the Seven Gables motel in Oceanside, California, in the early morning hours of March 15, 1996. (Resp.'s Lodgment B, Reporter's Tr. ["RT"] at 14-21.) Haley and Harriel pled guilty to robbery of Williams based on the events which transpired at the Seven Gables motel, and had served their sentences and been released prior to trial; they both invoked their Fifth Amendment right and refused to testify. (RT 21, 34.) Prior to trial, Avion Tuimalo's attorney stated that Tuimalo was a juvenile living in Los Angeles who was currently on probation as a result of a robbery conviction she suffered based on the events that night, and that she wished to invoke her Fifth Amendment right and refuse to testify. (RT 25.) Petitioner's trial counsel stated that he had spoken to Tuimalo and believed she would testify if granted immunity. (RT 25, 308-09.) The prosecutor stated that if Petitioner's trial counsel could convince Tuimalo to come down from Los Angeles, his office was willing to grant her immunity. (RT 26.) Petitioner's trial counsel also indicated that he wished to call Lasean Harriel as a witness but the prosecutor had declined to provide him with immunity. (RT 308.)
April Davis testified under a grant of use immunity; she was in custody at the time of her testimony after being convicted of robbery for her role in the events that night. (RT 40, 76-77.)
She testified that she was fourteen years old on March 14, 1996, and came down from Compton in Los Angeles to Oceanside near San Diego that evening with her friend Tuimalo and their friend "Awol." (RT 60-61, 76.) They smoked marijuana and ingested PCP, and met Tuimalo's sister Haley, along with Tei and Harriel; Petitioner picked them up in a car belonging to Charles Hammer which Hammer had lent to Haley, and Petitioner drove them (Davis, Tei, Tuimalo, Haley and Harriel) to the Seven Gables motel. (RT 63-73, 92, 130, 154, 240-44.)
Davis testified that at some point that evening Petitioner brought Williams to the motel room, put a gun to his head and told him to take off his clothes. (RT 77-80.) Williams stripped down to his underwear, was tied up with his own shoelaces, and was hit by Haley and Tei with a table leg. (RT 81-82.) Petitioner hit Williams in the head with a gun and asked him where Williams' friend "Dirt" was, and Williams told Petitioner where to find Dirt. (RT 84-88.) Davis testified that Petitioner said he thought Dirt and a person named "Termite" were "snitches." (RT 93.) Davis said Petitioner told her to shoot Williams but she refused; Petitioner then threatened to kill Davis and put the gun to her head and pulled the trigger three times, but it did not fire. (RT 89-92.)
Davis testified that Petitioner ripped Williams' shirt and used a strip of cloth to cover his eyes; Petitioner, Williams, Davis, Tuimalo and Harriel then got back in Hammer's car; Williams had blood on his face at that time, his hands were tied, and Petitioner held a gun at his back. (RT 95-97, 100-01.) Petitioner drove them "a long ways" and let Williams out in a residential area; Petitioner fired the gun in the air and then drove the group, absent Williams, to the Coast Inn, which is located in another part of Oceanside. (RT 101-03, 189.) Shortly after the group arrived at the Coast Inn, Petitioner got out of the car when he saw Dirt walk into the parking lot. (RT 104-07, 110.) Davis watched as Petitioner pointed the gun at Dirt from two feet away, asked him "What's up?" and shot him in the neck. (RT 109-15.) Petitioner got back in the car and drove away. (RT 115-16.) Davis was cross-examined by Petitioner's trial counsel about her previous refusals to testify, her grant of immunity, her concern about being prosecuted as an accomplice or accessory to the murder, her alcohol and drug use, and inconsistencies between her trial and preliminary hearing testimony. (RT 120-23, 128-35, 141-42.)
Evangalina Tei testified under a grant of immunity that she and her cousin Mimi Haley were driving around Oceanside in a car Hammer had loaned Haley, and eventually met up with Harriel, Davis, Tuimalo and Petitioner, who was Haley's friend. (RT 145-52, 205-06, 240-44.) They drove together to the Seven Gables motel, which is at the far south side of Oceanside, arriving around 10:00 p.m. (RT 152-53.) Tei registered in room number four and all six of them (Tei, Haley, Harriel, Davis, Tuimalo and Petitioner) went inside and began to drink alcohol they had purchased on the way; at one point Tei and Haley walked to the store to get more alcohol; Tei said she drank "a lot" while at the motel. (RT 155-60.) About an hour after they arrived, Petitioner, brandishing a handgun, brought Williams into the room at gunpoint. (RT 161-65.) Petitioner ordered Williams to take off his clothes and jewelry; Harriel and Petitioner took jewelry, money, drugs and a pager from Williams. (RT 167-70.) Petitioner "pistol whipped" Williams in the face and asked him the whereabouts of Williams' "homies" Dirt, Honeywood and Termite; Williams was in the room for about two or three hours. (RT 171-74.) Tei said Petitioner wanted to know where Dirt, Honeywood and Termite were because Petitioner "was looking for them because he wanted to know who told on him," or, in Petitioner's words, who had "snitched" on him. (RT 175-76.) Tei testified that Williams told Petitioner that Dirt was at the Coast Inn; Tei said she hit Williams once on his body with a table leg. (RT 176-77.)
Tei testified that she and Haley tied Williams' hands behind his back with strips of cloth ripped from his shirt, and tied his feet with his shoelaces. (RT 179-82.) Haley left the motel alone in a taxi after arguing with Petitioner. (RT 182-83.) Everyone else, including Williams, left in Hammer's car at about 2:00 or 3:00 a.m. with Petitioner driving; Williams was untied and dressed at that time but shirtless. (RT 183-85.) They dropped Williams off about three miles from the Seven Gables motel and about 1.2 miles from the Coast Inn; Petitioner fired a shot in the air and they drove away. (RT 186-87, 291-92.)
Tei said they (Petitioner, Tei, Harriel, Tuimalo and Davis) then drove to the Coast Inn; on the way Petitioner said he wanted to talk to Dirt because when Petitioner "was locked up, someone had told on him [and] he wanted to know who." (RT 188-89, 192-93.) They arrived at the Coast Inn about 4:15 a.m. and Petitioner saw Dirt in the parking lot. (RT 191, 194.) Tei heard Petitioner tell Dirt he was from "Eastside CMG," a reference to Petitioner's gang affiliation. (RT 196.) Tei was speaking to Tuimalo and not paying attention to Petitioner when she heard a gunshot; Petitioner was the only person who Tei saw with a gun that night. (RT 195-98.) Tei saw Dirt on the ground as Petitioner got in the car. (RT 199-201.) They drove to a Motel 6. (RT 201.) Tei admitted she had been convicted of robbery based on the events that night, and was cross-examined regarding her grant of immunity, her alcohol use that night, her past drug use, and inconsistencies between her trial testimony, preliminary hearing testimony, and police statements. (RT 204-23.)
A medical examiner testified that Dante "Dirt" Atkins died from a gunshot wound through the neck fired from several inches away. (RT 235-38, 266, 288.) Charles Hammer testified that he owned the car Haley and Petitioner were driving on the night of the homicide, and that he had loaned the car to Haley that afternoon. (RT 240-44.) An Oceanside police officer testified that when he arrived at the Seven Gables motel the manager was inside room number four putting a table back together; the officer told the manager to disassemble the table and put the pieces back where he had found them. (RT 253.) Shoelaces and shirt fragments were found in a search of a dumpster in the parking lot of the Seven Gables. (RT 253-54.) The first officer to arrive at the Coast Inn arrived at approximately 4:40 a.m. (RT 263-64.) The lead detective on the case testified that he searched the room where Petitioner lived and found a newspaper article regarding the murder of Atkins, which contained a photograph of the crime scene, between Petitioner's mattress and box spring. (RT 289-90.) The people rested.
Petitioner's trial counsel informed the court that he had arranged for Tuimalo to testify, but that she had informed his investigator just that day that she had spoken with an attorney the day before who had advised her not to testify. (RT 308.) Petitioner's trial counsel stated that he believed she would testify if granted immunity, but the prosecutor had refused to provide her with a grant of immunity. (RT 308-09.) Petitioner's counsel had a report from his investigator, John Atwell, stating that Atwell had spoken to Tuimalo and she had told him that the incident at the Seven Gables motel came about because Williams had been stalking and terrorizing Tuimalo, Haley and their friends. (Resp.'s Lodgment A, Clerk's Tr. ["CT'] at 38-41.) Tuimalo said Williams was terrorizing them because they knew that Williams had been involved in a double shooting in 1993 involving rival factions of the Crips street gang, and they "could finger him to the authorities." (Id.) Tuimalo said Williams had knocked on their door at the Seven Gables motel that evening purely by chance, that what happened to Williams in the room was payback for his having terrorized them, and that they dropped Williams off in order to get rid of him because they did not want him around. (Id.) Tuimalo told Atwell that after they dropped off Williams, they dropped her off and she had no information regarding the rest of the evening. (Id.) Tuimalo informed the investigator that there was no mention of "Dirt" while in the motel room, and that in her opinion Davis was a chronic liar and a "Ho," which she defined as a woman who gives her body "to whatever gangbanger wanted it." (Id.) Tuimalo told Atwell that Davis may have been willing to sell out Petitioner in order to gain favor with a rival Crips faction in Los Angeles. (Id.) Atwell's written report does not mention Petitioner, and Tuimalo's statement neither confirmed nor denied that Petitioner was present or involved. (Id.)
The defense called as its only witness a psychiatrist who testified regarding the effects of PCP, alcohol and marijuana on perceptions and memories. (RT 316-24.) Petitioner's trial counsel was sanctioned for a discovery violation for failing to disclose the psychiatrist as a witness until just before he testified. (RT 274-75.) Counsel explained that he had counted on Tuimalo testifying, and when she decided not to he contacted the psychiatrist as his only option to put on a defense. (CT 37.)
On April 5, 1999, after deliberating a little less than four hours, the jury found Petitioner guilty of murder, robbery, kidnaping, assault with a firearm, and false imprisonment, all with the personal use of a firearm. (CT 221-22.) Immediately after the jury was excused, Petitioner engaged in a colloquy with the trial judge on the record complaining that the judge had failed to disclose that he knew one of the jurors. (Pet.'s Ex. vol. IIB [Doc. No. 126] at 546-48; RT 421-22.) On May 25, 1999, the day originally set for sentencing, Petitioner read a statement he had prepared to the trial judge complaining that he was deeply disturbed by the outcome of the trial because the prosecutor had falsely led the jury to believe that Atkins had snitched on Petitioner, which provided a false motive for him to kill Atkins because Atkins had not in fact snitched on him. (Id. at 552-55; RT 428-30.) Petitioner did not complain or mention during either address to the trial judge that an alibi defense had not been presented at his trial.
On August 20, 1999, Petitioner's trial counsel filed a motion for a new trial, stating that due to the delay between the murder and his arrest Petitioner had forgotten where he was on the night of the murder, but Paula White had read a newspaper account of the murder a few weeks earlier and had recalled that Petitioner was with her that evening at her friend Nishea Larose's anniversary party in Lemon Grove, California. (CT 170-83.) White provided a declaration stating that she had known Petitioner for several years and had previously dated him, that he had arrived in Lemon Grove about midnight on the evening of the murder, they argued about his being late, and they stayed at Larose's apartment until the next morning when they went to breakfast together. (CT 174-75.)
At the hearing on the new trial motion, Petitioner's trial counsel argued that there was no physical evidence in this case; rather, the evidence against his client was based on two unreliable eyewitnesses, Tei and Davis, and that if White had been allowed to testify, the outcome of the trial would have been different. (Pet.'s Ex. vol. IIB at 561-63; RT 435-38.) The court denied the motion, finding that the credibility of Tei and Davis had been adequately challenged at trial through their testimony and the expert witness, and that the alibi was not new evidence because Petitioner had the opportunity to present evidence regarding where he was on the night of the murder at trial, as he was initially arrested only five weeks after the murder.*fn4 (Id. at 563-66; RT 438-41.)
B. State appellate proceedings
Petitioner's appointed appellate counsel argued on direct appeal that his false imprisonment conviction was a lesser included offense of kidnaping (an argument with which the state court agreed), and that the evidence was insufficient to support the convictions because the two main prosecution witnesses, Tei and Davis, were under the influence of alcohol or PCP,had both been convicted of robbery, and were both granted immunity in exchange for their testimony. (Resp.'s Lodgment C, People v. Watson, No. D034448, slip op. at 2 (Cal.App.Ct. July 12, 2001.) Petitioner filed two pro se state habeas petitions, which were consolidated with the appeal. In one petition he alleged that the prosecutor had argued a false motive theory, and that his trial counsel was ineffective for failing to argue that the prosecution's motive theory was false, which he supported with allegations that Atkins was not the person who had informed on him. (Id. at 12-13.) In the other petition he alleged a Brady violation for failing to turn over information regarding an offer of immunity to Hammer, and presented a claim that his trial counsel was ineffective for failing to adequately cross-examine Hammer regarding the alleged immunity offer and for failing to interview or investigate potential alibi witnesses Paula White and Kristy Yard. (Id. at 8-9.) In addition to White's declaration, Petitioner presented an affidavit from Kristy Yard stating that she had been baby-sitting for Paula White the night of the murder, and that White had called her that night and told her she had arrived in San Diego but was waiting for Petitioner; White called again about 12:30 a.m., waking Yard up, to say that Petitioner had just arrived, at which time Yard spoke to Petitioner. (Pet.'s Ex. vol. IIB at 603.) Petitioner also presented an affidavit from Derek D. Morgan, which is not properly executed under penalty of perjury, which stated that he had given Petitioner a ride to Lemon Grove that night to be with a female friend of Petitioner's. (Id. at 685.) Petitioner presented a declaration from Charles Hammer, dated January 12, 2000, stating that a prosecution investigator had threatened him with prison unless he fabricated a story that he had loaned his car to Petitioner on the night of the murder, rather than the truth, which he testified to at trial, that he had loaned the car to Haley. (Id. at 600.)
The appellate court issued an opinion affirming Petitioner's convictions and denying the two contemporaneously-filed habeas petitions, stating in relevant part:
On March 14, 1996, Watson brought James Williams, also known as "Baby
Gangster" into a Oceanside motel room at gunpoint and over the course
of several hours hit Williams with the gun, tied his legs and wrists,
took his drugs, money and jewelry, and asked him the whereabouts of
his friend Dante Lamar Atkins. Others were present during these
events, including Watson's friend Mimi Haley,
her cousin Evangelina Tei, Lasean Harriel, Jan Tulimalo*fn5
and April Davis. The group had checked into the room at 10:00
p.m., about an hour before Williams arrived. Some of those people
assisted Watson at times, including Tei, who hit Williams with a metal
table leg. Davis sat on a couch during the events. Early the next
morning, Watson approached Atkins in the parking lot of another hotel
and fatally shot him. [¶] At Watson's trial, Davis and Tei testified
under a grant of immunity about the events that occurred that night
and the following morning.
Watson challenges the sufficiency of the evidence supporting his convictions solely on the basis of Davis and Tei's credibility. He asserts the fact they ingested drugs (in Davis's case) and alcohol (in Tei's case) during the evening in question, suffered robbery convictions and accepted immunity from prosecution makes their testimony "inherently incredible as a matter of law." [¶] Watson does nothing more than ask us to impermissibly invade the jury's role by weighing the effect of the evidence and deciding matters of credibility. . . . [¶] The jury was well aware of Davis and Tei's alcohol and drug use before arriving at the verdict. . . . [¶] Both Davis and Tei were cross-examined on their alcohol and drug use that evening, as well as on inconsistencies between their preliminary hearing and trial testimony. The jury learned that both had suffered robbery convictions, Tei's for her conduct on the evening in question, and that both were granted immunity for their testimony. Consequently, the jury was given the opportunity to weigh Davis and Tei's credibility and decide whether to accept their stories with all of those facts before it. We cannot second-guess the jury's determination in this regard.
Watson contends his trial counsel was ineffective for (1) failing to adequately cross-examine a prosecution witness, Charles Hamer,*fn6 which would have revealed the prosecutor's investigator gave Hamer a "promise of immunity" in exchange for his testimony and (2) failing to interview or otherwise investigate and put on the stand two alibi witnesses, Paula White and Kristy Yard. Watson further argues reversal is warranted because the prosecutor never turned over information about the prosecution's offer of immunity to Hamer under Brady v. Maryland (1963) 373 U.S. 83 (Brady). [¶] In support of his petition, Watson submits Hamer's declaration and letter dated January 12, 2000, in which Hamer states he was told by the prosecutor's investigator to fabricate his testimony about who borrowed his car on the night in question or suffer prison time. There is no indication Watson's defense counsel was aware of this information either at the time of trial, which commenced in March 1999, or at the time of Watson's motion for new trial, which was first made in May 1999 and further heard and denied on October 7, 1999. At trial, Hamer testified to what he says is the truth -- that he loaned his vehicle at about the time in question to Mimi Haley. . . . We cannot conclude that Watson's counsel was incompetent for failing to cross-examine Hamer about matters counsel did not know about nor could have reasonably suspected based on Hamer's truthful testimony.
We likewise reject Watson's claim that counsel was ineffective for failing to call potential alibi witnesses White and Yard. White's declaration, attached to Watson's petition, avers that in late July or early August 1999, after reading a newspaper article about Watson's murder charges, she recalled that at about 11:30 p.m. or 12:00 a.m. on the night in question, she had met Watson at a party in San Diego. Watson also submits Yard's affidavit, in which Yard states she recalled White and Watson attended a party in San Diego on March 14, 1996, and that White called her at 12:30 a.m. the next morning to inform her Watson had arrived. The record indicates White contacted Watson's counsel for the first time in July 1999 and that the potential alibi testimony was thereafter made the subject of a motion for a new trial. The court denied the motion after considering the information and concluding it was not truly newly discovered evidence because such an alibi could have been raised by Watson himself. Contrary to Watson's contention, the record indicates counsel had no knowledge of White's existence or her potential testimony in time to present her as a witness at trial. To the extent Watson contends his counsel was ineffective for failing to adequately investigate and locate White before trial, he has not sufficiently met his burden to show his counsel's incompetence. . . . There is no indication in the petition, either by Watson's declaration, declaration of counsel or otherwise, that counsel knew or should have known about White's existence or had any reason to investigate an alibi defense before trial.
Finally, we reject Watson's contention that the prosecution failed to reveal favorable evidence before trial, namely the prosecution investigator's offer of "immunity" to witness Hamer. . . . [¶] We cannot say the evidence regarding Hamer's offer of immunity, as Watson characterizes it, meets the Brady test for materiality. . . . While evidence that Hamer was offered immunity for his testimony may bear on the issue of Hamer's credibility, Hamer's declaration indicates he in fact did not receive any such benefit, nor did he agree to testify falsely as he claims he was asked to do. Even assuming Hamer was offered immunity for favorable testimony, that fact cannot be used as a basis for attacking the credibility of the other prosecution witnesses. As indicated, the jury was informed the prosecutor granted immunity to Davis and Tei, the People's two key witnesses. In any event, the evidence as to immunity, while usable for Hamer's impeachment, was immaterial to Watson's guilt or penalty. We conclude there is no reasonable probability that the evidence of the prosecution's offer of immunity to Hamer would have resulted in a different outcome regarding Watson's guilt.
In his second petition, Watson argues his conviction resulted from a theory advanced by the prosecutor based upon false evidence, namely that Atkins "snitched" on Watson and therefore Watson was motivated to kill Atkins by revenge. He maintains the falsity of this theory is exhibited by his arrest record, which shows Atkins was not the informant to whom he sold cocaine. Watson argues the jury was misled by the prosecution's erroneous theory of motive and further that his counsel was ineffective in failing to argue that the People's theory was based on false evidence.
Watson has failed to meet his burden of proof as to this ineffective assistance of counsel claim. First, we find no support for his assertion that his arrest report establishes Atkins was not an informant. The arrest record attached to his petition merely states Watson sold rock cocaine to a "confidential informant" without identifying that person or ruling him or her out as Atkins. Second, evidence apart from Watson's arrest record supported the People's motive theory. Tei testified at trial that Watson asked about Atkins because he wanted to know who "snitched" on him. Counsel "need not do everything the defendant may personally desire, no matter how unmeritorious . . . Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances. (Citations.)" (People v. Freeman (1994) 8 Ca.4th 450, 509.) Under the circumstances, Watson's defense counsel would have a reasonable tactical basis for failing to raise a claim of false evidence because there was simply no support for it. We cannot conclude counsel was ineffective for failing to make an apparently meritless argument that the prosecution based its case on false evidence. [¶] In any event, Watson has failed to demonstrate how he was prejudiced, i.e., why it is reasonably probably a juror would have reached a verdict in his favor if he had different counsel or if his counsel had made this argument.
(Resp.'s Lodgment C, People v. Watson, No. D034448, slip op. at 3-14.)
Petitioner thereafter raised his claims in the state supreme court, where he presented for the first time his own declaration stating that he had informed his trial counsel in September 1996, and again in March 1999, of White's existence, and claimed that he told counsel that he was with White on the night of the murder.*fn7 (Pet.'s Ex. vol. IIIA [Doc. No. 127] at 694-95.) On September 19, 2001, the state supreme court summarily denied relief without a statement of reasoning or citation of authority. (Id. at 700.)
C. Federal district court proceedings
Prior to denying habeas relief, Judge Benitez found that the state court had made two crucial factual findings: (1) that Petitioner's trial counsel had no knowledge of White's alibi story prior to trial; and (2) that trial counsel had no reason to investigate an alibi defense before trial. (11/17/04 Order Denying Petition at 10-12.) Judge Benitez declared these findings to be objectively unreasonable because Petitioner had alleged in the appellate court that he told his attorney about White prior to trial, and had thereafter presented his own declaration stating as much to the state supreme court, but the State had not submitted any evidence refuting Petitioner's declarations. (Id.) Judge Benitez found that the evidence was therefore one-sided, other than the "slim inferential evidence" that Petitioner did not mention his alibi defense when he twice addressed the trial judge. (Id.) The Court expanded the record with interrogatories propounded to Petitioner's trial counsel, who initially answered that he knew about the alibidefense before trial, but then filed supplemental answers indicating he was wrong, that he had not located his files at the time of his initial answers and had mis-remembered. (Id. at 15.) Petitioner's trial counsel then indicated, consistently with his later evidentiary hearing testimony, that Petitioner did not tell him about White until after the trial. (Id.) The evidentiary hearing was bifurcated between the performance and prejudice prongs of Strickland. The performance prong was held first in order to determine what Petitioner's trial counsel knew about White and Yard, when he knew it, and what he did to investigate the alibi defense. (Id. at 22.)
Four witnesses testified at the evidentiary hearing, Paula White, Petitioner, Petitioner's trial counsel, and Petitioner's trial counsel's investigator John Atwell. Petitioner testified that he had known White for seven or eight years, that she was the mother of his child, that they had previously lived together for several years, and that he has her name tattooed on his chest. (May 23, 2004 Evidentiary Hearing Tr. at 42, 83-84.) He said they had not spoken or been in touch for three or four years when she paged him around 7:30 p.m. on the night of the murder. (Id. at 42-45.) He called White back and she told him she was in San Diego at a party at the home of Petitioner's friend Nishea Larose. (Id. at 43.) Petitioner testified that Derek Morgan drove him to the party; they left Oceanside around 9:30 or 10:00 p.m. that evening, and along the way they stopped at the home of Petitioner's friend Ms. Bobbie Douglas, staying about half an hour. (Id. at 46-47.) Petitioner said he and Morgan then proceeded to Larose's house where Morgan met briefly with White before leaving; Petitioner spent the night at Larose's house with White, and they went out to breakfast the next morning. (Id. at 48.) Petitioner testified that he gave his trial counsel information about White, Douglas and Morgan, that he and trial counsel had six or seven conversations about finding those witnesses, and that counsel told Petitioner that he had an investigator looking for them. (Id. at 49-55.) Petitioner admitted he wrote a letter to counsel dated July 30, 1999, in response to counsel informing him that he had been contacted by White, in which Petitioner referred to his alibi as "newly discovered evidence." (Id. at 66.)
Paula White's direct testimony was generally consistent with her declaration, but on cross-examination she was vague and uncertain regarding many of the details. (March 17, 2004 Evidentiary Hearing Tr. at 9-13, 15-29.) She said she first contacted trial counsel in August 1999, and said that Larose was actually a friend of Petitioner's who she did not know very well, not her friend as she had stated in her declaration. (Id. at 16, 27.) White could have potentially been impeached as a trial witness with her prior convictions for presenting a false identification to a police officer, felony possession of marijuana for sale, and theft of personal property, as well as with the nature of her relationship with Petitioner and the unusual circumstance of contacting him for the first time in three or four years that very night. (Id. at 31.)
Petitioner's trial counsel, who had handled twenty to twenty-five murder cases before Petitioner's trial, testified that in preparing for trial had he asked Petitioner if he had an alibi, and Petitioner said he might have been in Lemon Grove that night and would have his people look for information. (May 23, 2004 Evidentiary Hearing Tr. at 114-16.) Counsel testified that although Petitioner told him that Larose might be able to say she was with Petitioner on the night of the murder, Petitioner also told him not to contact her because she would not help the case. (Id. at 112.) Trial counsel said that Petitioner never asked him if Morgan could testify at trial and never informed him about Morgan. (Id. at 124-25.) Investigator Atwell attempted to find Douglas, but he could not locate an address. (Id. at 17-18.) After the charges were initially dismissed and Petitioner released from custody, he was taken into custody again when the charges were refiled; at that time trial counsel said he again asked Petitioner if he had located his alibi witnesses, but Petitioner answered "no." (Id. at 104, 114-15.) When trial counsel eventually spoke to White while preparing for the new trial motion, he said she was evasive, vague and very difficult. (Id. at 124, 131.) Counsel said that White refused to help him locate witnesses supporting the alibi and refused to testify at the new trial motion because she did not want to jeopardize her current romantic relationship by helping Petitioner, and that she said she would not "lie for [Petitioner]." (Id. at 132.)
Following the evidentiary hearing, Judge Benitez found that Petitioner's trial counsel had testified credibly when he said that he had asked Petitioner at the outset of his representation whether he had an alibi, but Petitioner's answer was "sketchy" in that Petitioner said he might have been somewhere else, told counsel that he "would look into finding out if he was somewhere else," and that "my people will let you know where I was and who I was with." (11/17/04 Order Denying Petition at 23-24.) Judge Benitez also found there was no credible alibi, and that trial counsel reasonably doubted that one existed, because (1) many actual and potential witnesses placed Petitioner at the scene, including Davis, who testified at trial, and Haley, who told trial counsel that she witnessed Petitioner murder Atkins and would not help him, whereas only Petitioner and White placed Petitioner in Lemon Grove; (2) Petitioner never mentioned White or Yard to trial counsel until after trial; and (3) White was not a credible witness and trial counsel reasonably believed she had invented the alibi. (Id. at 24-25.) Judge Benitez found that Petitioner was not a credible witness at the evidentiary hearing because:
(1) his testimony appeared to be rehearsed; and (2) he was not a bashful defendant or client, yet never protested to the trial judge that no alibi defense had been presented nor asked for a new attorney, even though he had twice spoken to the trial judge. (Id.) Finally, Judge Benitez found that investigator Atwell had spoken to alibi witness Larose but apparently did not report back with any favorable information, that trial counsel had given the name and address of potential alibi witness "Bobbie" Douglas to Atwell but Atwell had reported that no such address existed, and that Atwell was not credible regarding his criticism of trial counsel. (Id. at 25.)
Judge Benitez denied habeas relief as to the alibi aspect of the ineffective assistance claim based solely on the Strickland performance prong, without holding the prejudice prong of the evidentiary hearing, after concluding that trial counsel had adequately carried out his duty to investigate the possible alibi defense, without a discussion or analysis of Strickland's prejudice prong. (Id. at 25-26.) The remaining claims presented in the Petition and Traverse were denied based solely on the state court record, without addressing the new allegations of deficient performance or the new Brady claim, and without ruling on Petitioner's request to amend the Petition.*fn8 (Id. at 25-37.)
D. Ninth Circuit proceedings
The Ninth Circuit affirmed the denial of Petitioner's claim that the prosecutor knowingly presented a false motive, and that his appellate counsel was ineffective for failing to raise that claim on appeal, agreeing with this Court and the state appellate court that the motive argued by the prosecutor (that Petitioner killed Atkins because Petitioner thought Atkins was a snitch) was supported by the testimony of Tei and Davis. (Doc. No. 109 at 4-5.) The Ninth Circuit affirmed the denial of the Brady claim presented in the Traverse which alleged that the prosecutor failed to turn over evidence of an alleged offer of immunity to Hammer, based on this Court's finding that Petitioner could not establish materiality under Brady because Hammer did not actually receive such an offer, and that he had in any case testified truthfully at trial.*fn9 (Id. at 5.)
The Ninth Circuit likewise affirmed the denial of the ineffective assistance of trial counsel claim alleging a failure to cross-examine Hammer as to the immunity offer because Petitioner could not establish prejudice under Strickland for the same reason he could not establish materiality under Brady.*fn10 (Id. at 5-6.) The Ninth Circuit also affirmed the denial of Petitioner's insufficiency of the evidence claim, finding that because it was the jury's responsibility to evaluate the credibility of Davis and Tei, and because their testimony if believed was sufficient to convict Petitioner, the state court's holding was not contrary to or an unreasonable application of clearly established federal law. (Id. at 6.)
The Ninth Circuit agreed with this Court that trial counsel did not know about alibi witnesses White and Yard until after trial and counsel was therefore not ineffective in failing to investigate or interview those witnesses, based on this Court's determination that trial counsel was the only credible witness at the evidentiary hearing. (Id. at 2-3.) The Ninth Circuit reversed with respect to the finding that trial counsel was not ineffective for failing to investigate potential alibi witness Douglas, reasoning that there was nothing in the record to indicate why counsel did not follow up on his investigator's report stating that he could not find a Mr. Douglas when counsel knew that Douglas was a woman and a potential alibi witness. (Id. at 3.) The Court remanded with instructions to determine whether trial counsel had a reasonable explanation for the failure to follow up with Douglas. (Id. at 4.) The Ninth Circuit also found that this Court did not make specific findings regarding the reasonableness of trial counsel's failure to interview potential alibi witness Larose, and instructed that: "On remand, the district court should address this issue as well." (Id.)
Finally, the Ninth Circuit found that Petitioner had not exhausted his claim that the cumulative effect of trial counsel's errors rendered his performance deficient, and dismissed the appeal without prejudice to the extent it raised an unexhausted claim because it was "barred from considering the merits" of any unexhausted claims. (Id. at 6-7.) The Ninth Circuit also rejected Petitioner's contentions that: (1) he was not given a full and fair hearing in this Court; (2) this Court had erred in deferring to the state court's findings of fact; and (3) this Court had improperly limited the evidentiary hearing to the alibi claim. (Id. at 7-8.) The Ninth Circuit found that although Judge Benitez had not abused his discretion in striking about a dozen declarations attached to Petitioner's his post-evidentiary hearing brief, the better course would have been to admit that evidence, and indicated that this Court is not precluded from considering those declarations on remand. (Id. at 8.)
Respondent contends the newly exhausted claims are procedurally defaulted in this Court because the state court found them to be untimely and successive, citing Walker v. Martin, 562 U.S. ___, 131 S.Ct. 1120 (2011) (holding that California's timeliness rule is clearly established and consistently applied). (Resp.'s Opp. at 15-16.) Petitioner: (1) challenges the independence and adequacy of California's timeliness rule; (2) attempts to distinguish Walker on the basis that the petitioner in Walker did not attempt to explain the delay in presenting the claims whereas Petitioner gave the state court compelling reasons for the delay; (3) argues that imposition of a procedural default would be inequitable because Respondent effectively waived the affirmative defense of procedural default by waiting seven years to raise the issue; and (4) contends he can establish cause and prejudice to excuse the default, or show that a fundamental miscarriage of justice would result by imposition of the default. (Pet.'s Reply at 17-36.) Petitioner contends there has been no delay in presenting the new Brady claim to the state courts because he is still unsure of its factual basis, and requests discovery to determine whether the prosecution withheld forensic evidence. (Id. at 36-37.)
When a state court rejects a federal claim based upon a violation of a state procedural rule which is adequate to support the judgment and independent of federal law, a habeas petitioner has procedurally defaulted his claim in federal court. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). A state procedural rule is "independent" if it is not interwoven with federal law. LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state procedural rule is "adequate" if it is "clear, consistently applied, and well-established" at the time of the default. Calderon v. United States District Court, 96 F.3d 1126, 1129 (9th Cir. 1996). The Court may still reach the merits of a procedurally defaulted claim if the petitioner can demonstrate cause for his failure to satisfy the state procedural rule and prejudice arising from the default, or if he can demonstrate that a fundamental miscarriage of justice would result from the Court not reaching the merits of the defaulted claims. Coleman, 501 U.S. at 750.
Petitioner presented the new Brady claim and the new ineffective assistance of trial counsel claim to the state trial court in a habeas petition on June 8, 2007. (Pet.'s P&A Ex. vol. V at 1775-1841.) The trial court issued an order to show cause on August 27, 2007. (Id. at 1754-57.) Respondent filed a return on February 29, 2008, and Petitioner filed a Reply on June 2, 2008. (Id. at 1759-63.)
The trial court denied the petition in an eight-page order filed September 23, 2008. (Id. at 1764-71.) With respect to the new allegations of deficient performance, the court found that Petitioner had failed "to establish a reasonable probability that without counsel's errors, the result of the proceeding would have been different." (Id. at 1767-70.) Regarding the timeliness of the claims, the trial court stated:
Further, these are matters which were evident form the trial transcript and should have been challenged on appeal. "Contentions which could have been raised on appeal or which were raised and rejected on appeal ordinarily cannot be renewed in a petition for habeas corpus because habeas corpus ordinarily cannot serve as a second appeal." In re Dixon (1953) 41 Cal.2d 756; In re Waltreus (1965) 62 Cal.2d 218.
The trial court also rejected the Brady claim, noting that the Deputy District Attorney and a police detective had filed declarations indicating that no exculpatory evidence existed which had not been provided to Petitioner, and that although some physical evidence had been collected it was not tested because the prosecution did not think it was relevant to the case. (Id. at 1771.) The trial court found that none of the evidence which was collected was exculpatory, and that the lack of forensic evidence from the Seven Gables motel where Williams was supposedly tied to a chair and beaten might be due to efforts by the motel employees to clean the room before the police intervened. (Id. at 1770-71.) The trial court noted that physical evidence (shoelaces and black cloth) consistent with the testimony of Tei and Davis was found in a dumpster at the Seven Gables motel, and that the extent of Williams' injuries was unclear from the evidence presented at trial, although the probation report indicated that Williams complained of scalp injuries. (Id. at 1770.) Petitioner filed a habeas petition in the appellate court presenting the same claims, which was summarily denied. (Id. at 1842-1958; Resp.'s Lodgment K, In re Watson, No. D053963, order at 1 (Cal.App.Ct. April 7, 2009).)
Petitioner presented the new claims to the state supreme court in a habeas petition filed May 8, 2009, over seven years after his conviction became final. (Pet.'s P&A Ex. vol. VI at 1960-2094.) The state supreme court denied the petition with an order which stated: "The petition for writ of habeas corpus is denied. (See In re Robbins (1998) 18 Cal.4th 770, 780; In re Clark (1993) 5 Cal.4th 750.)" (Id. at 2095.)
In Walker v. Martin, the petitioner presented claims alleging ineffective assistance of counsel to the California Supreme Court nearly five years after his conviction became final, without providing any reason for the long delay, and, as here, the petition was denied with citations to In re Robbins, 18 Cal.4th 770, 780 (1998) and In re Clark, 5 Cal.4th 750 (1993). Walker, 131 S.Ct. at 1124. The Walker Court recognized that Robbins and Clark are cited by the California Supreme Court, and in particular page 780 of the Robbins opinion (which was cited here), when that court signals "that a habeas petition is denied as untimely." Id. That is, the California Supreme Court signaled that the petitioner had failed to seek habeas relief without "substantial delay" as "measured from the time the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim," and had failed to carry "the burden of establishing (i) absence of delay, (ii) good cause for the delay, or ...