The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DIRECTING THE CLERK TO SUBSTITUTE AS RESPONDENT
FINDINGS AND RECOMMENDATIONS TO WARDEN RICK HILL,
DENY PETITIONER'S MOTIONS TO EXPAND THE RECORD AND TO AMEND THE PETITION (DOC. 22)
FINDINGS AND RECOMMENDATIONS TO DENY THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1),
ENTER JUDGMENT FOR RESPONDENT, AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY
OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on November 9, 2010, along with supporting exhibits. Respondent filed an answer on March 15, 2011, with supporting documentation of the state court record. Petitioner filed a traverse on April 11, 2011.
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam). Petitioner claims that in the course of the proceedings resulting in his conviction and sentence, he suffered violations of his Constitutional rights. The challenged judgment was rendered by the Fresno County Superior Court (FCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).
Petitioner named, and Respondent filed an answer on behalf of, Respondent Anthony Hedgepeth, the warden of the Salinas Valley State Prison, where Petitioner was confined at the time the petition was filed. Thus, Petitioner named as Respondent a person who had custody of Petitioner. Although Petitioner is presently incarcerated at Folsom State Prison (FSP), the Court maintains its jurisdiction because "jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change." Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990)
(citing Smith v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971)).
Accordingly, the Court concludes that it has jurisdiction over the subject matter of the action and the person of the Respondent.
II. Order to the Clerk to Substitute the Respondent The official website of the California Department of Corrections and Rehabilitation (CDCR) *fn1 indicates that Rick Hill is presently the warden of the FSP. Fed. R. Civ. P. 25(d) provides that when a public officer who is a party to a civil action in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending, the officer's successor is automatically substituted as a party. It further provides that the Court may order substitution at any time, but the absence of such an order does not affect the substitution.
The record reflects that Petitioner's present custodian is Warden Rick Hill. It is, therefore, appropriate under rule 25(d) to order a substitution of the proper Respondent. Accordingly, it is ORDERED that Warden Rick Hill be SUBSTITUTED as the Respondent.
Petitioner was convicted by a court trial in the FCSC of shooting at an inhabited dwelling in violation of Cal. Pen. Code § 246 (count 3), unlawful possession of a firearm in violation of Cal. Pen. Code § 12021(c)(1) (count 4), and being an active participant in a criminal street gang in violation of Cal. Pen. Code § 186.22(a) (count 5). The court found true allegations that Petitioner had unlawfully discharged a firearm within the meaning of Cal. Pen. Code § 12022.53(c), personally used a firearm within the meaning of Cal. Pen. Code § 12022.5(a), and committed the unlawful shooting at the inhabited dwelling in association with, at the direction of, or for the benefit of a criminal street gang within the meaning of Cal. Pen. Code § 186.22(b). (LD 1, 1-2.) *fn2
Petitioner was sentenced to a seven-year term for shooting at an inhabited dwelling, fifteen years to life for the street gang allegation, and twenty years for discharging a firearm; a ten-year term for personal use was stayed. (Id. at 2.)
On appeal, the California Court of Appeal for the Fifth Appellate District (CCA) affirmed the judgment of conviction but remanded the case for re-sentencing as follows:
The seven-year sentence imposed on the section 246 conviction is ordered stricken. The 10-year section 12022.5, subdivision (a) enhancement is ordered stricken. On remand, the court shall impose the 15 years to life called for by section 186.22, subdivision (b)(4) as a penalty for the section 246 count 3 conviction itself. (See part II of this opinion, supra. ) The matter is remanded to the trial court for resentencing in accordance with the views expressed in this opinion. (LD 1, 21.)
Petitioner sought review in the California Supreme Court (CSC).
The CSC denied review of his claim of ineffective assistance of counsel, but granted review of whether a violation of Cal. Pen. Code § 246 (shooting at an inhabited dwelling) that is committed to benefit a criminal street gang pursuant to Cal. Pen. Code § 186.22(b)(4)(B) is a felony punishable by imprisonment in the state prison for life within the meaning of Cal. Pen. Code § 12022.53(a)(17) such that the sentence may be enhanced under § 12022.53(c) for the defendant's personal and intentional discharge of a firearm. (LD 2-4.) The CSC issued a decision rejecting Petitioner's challenge to the sentence and affirming the CCA's decision. (LD 5.)
While his petition for review was pending, Petitioner filed a petition for writ of habeas corpus in the FCSC alleging denial of his right to the effective assistance of counsel based on trial counsel's failure or refusal to investigate and present witnesses Batten and Clay, whose declarations or witness statements, which Petitioner characterized as new evidence, contradicted the testimony of prosecution witness Demont Wilson. Petitioner also raised appellate counsel's failure to raise an issue of instructional error on appeal. (LD 6.) The FCSC denied the petition. (LD 7.)
Petitioner filed a petition for writ of habeas corpus raising the same issues in the CCA. (LD 8.) The petition was denied "without prejudice to petitioner refiling his petition in the superior court." (LD 9.) Neither party has submitted any information that would indicate that Petitioner filed any additional petitions in the CSC.
In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). This presumption applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009).
Here, the CCA considered and decided Petitioner's ineffective assistance of counsel claim; however, the CSC denied review of all but Petitioner's sentencing claim, which presented an issue of law and did not involve different or disputed facts. Thus, to analyze Petitioner's claim that his trial counsel was ineffective, the CCA's version of the facts of Petitioner's offense and trial proceedings will be set forth. The following summary is taken from the decision of the Court of Appeal of the State of California, Fifth Appellate District, in People v. Daniel Laquinn Jones, case number F047448, filed on October 25, 2006 (LD 1):
After members of one gang (the East Lane Six Deuce Diamond Crips, or simply "East Lane") exchanged words with a member of another gang (the Hoover Crips) outside of an apartment complex, one of the East Lane gang members fired several shots. No one was struck by any of the bullets, but one of the bullets passed through the living room window and into the inner wall of one of the apartments. Fragments of wall fell onto the hair of a 14-year-old girl who was sitting on a couch in the living room of that apartment. Appellant Daniel Jones, whose gang moniker was "D-Loc," was tried without a jury and convicted of assault with a semiautomatic firearm (§ 245, subd.(b)), discharging a firearm at an inhabited dwelling house (§ 246) and other crimes. Witnesses Demont Wilson and Elizabeth Brown both identified appellant as the shooter. Demont Wilson testified that appellant had been only four or five feet away from him just prior to the shooting. Appellant moved for a new trial on the ground of newly discovered evidence. The evidence was statements from two witnesses: Samuel "Trigger" Miles, one of the East Lane gang members who was present at the incident, and Lamont Wilson, the Hoover Crip.FN3 Both men had refused to cooperate with the police investigation prior to the trial. Both men said appellant was not the shooter, but would not say who the shooter was. Miles said he knew who the shooter was. Lamont Wilson claimed he did not know the shooter's name but had "seen him, uh, last weekend as a matter of fact" and said that if he saw the shooter again he could identify the shooter. Miles was charged along with appellant. He entered a plea to charges of assault with a firearm and street gang terrorism, and received a two year sentence. Miles denied that he was the shooter.
FN3. Lamont Wilson was Demont Wilson's younger brother.
The court granted appellant's motion for a new trial. Appellant had a second non-jury trial before the same judge who had presided at the first trial. At appellant's second trail (sic) Demont Wilson again identified appellant as the shooter. Elizabeth Brown recanted her identification of appellant as the shooter, but Officer Danny Kim testified that on the night of the shooting Brown identified appellant as the shooter. Appellant did not call Miles as a witness at the second trial, apparently believing that Miles's testimony would hurt more than it would help. The prosecution was apparently of the same view and called Miles as a prosecution witness at the second trial. Miles testified that someone known as "Elijah" was with him at the apartments and had a gun. Miles denied that he saw Elijah fire the gun, but said that "[i]t could have been" Elijah who fired the gun. The prosecution presented evidence that prior to the second trial Miles had identified Elijah Cruz as the shooter. The prosecution also presented undisputed evidence that Elijah Cruz had been in custody at the time of the shooting, and that Cruz was now deceased. Lamont Wilson did testify. He and a defense investigator were the only defense witnesses called at the second trial. Lamont Wilson denied that East Lane gang member "Baby James" Batten had been present at the incident, even though Batten (like Miles) had already been convicted of assault with a firearm and street gang terrorism for his role in the incident. Lamont Wilson said the shooter was someone he knew as "MacDre" and that MacDre looked nothing like appellant. Lamont Wilson testified that he had not cooperated at all with the police.
The judge at appellant's second trial found appellant guilty of shooting at an inhabited dwelling (§ 246; count 3), unlawful possession of a firearm (§ 2021, subd. (c)(1); count 4) and street terrorism (§ 186.22, subd. (a); count 5.) On count 3, the court also found true special allegations that appellant personally used a firearm (§ 12022.5, subd. (a)(1)), that appellant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and that appellant committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)(B)). The court also found true a special allegation that the count 4 crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The court acquitted appellant of assault with a semiautomatic firearm (§ 245, subd. (b); count
1) and of assault with a firearm (§ 245, subd. (a)(2)); count 2), apparently due to doubt about who or what appellant was shooting at. (Counts 1 and 2 alleged assaults upon Lamont Wilson's brother Demont Wilson, who was also present.)
Appellant then once again moved for a new trial on the ground of newly discovered evidence. This time appellant presented declarations of three persons (and the transcript of a statement taken from one of them) who stated that key prosecution witness Demont Wilson had been inside one of the apartments at the time the shooting had occurred outside. Notably absent from the three declarations and the statement was any information whatsoever as to why these three individuals had not given this information to either the prosecution or the defense at any earlier time. The court denied this second motion for a new trial. (LD 1, 3-5.)
V. Standard of Decision and Scope of Review Title 28 U.S.C. § 2254 provides in pertinent part:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 8 unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). It is thus the governing legal principle or principles set forth by the Supreme Court at the pertinent time. Lockyer v. Andrade, 538 U.S. 71-72.
A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. at 405-06. The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Early v. Packer, 537 U.S. 3, 8 (2002). A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in an objectively unreasonable manner, or 2) extends or fails to extend a clearly established legal principle to a new context in an objectively unreasonable manner. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable.
Williams, 529 U.S. at 410.
A state court's determination that a claim lacks merit precludes federal habeas relief as long as it is possible that fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even a strong case for relief does not render the state court's conclusions unreasonable. Id. To obtain federal habeas relief, a state prisoner must show that the state court's ruling on a claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. The standards set by § 2254(d) are "highly deferential standard[s] for evaluating state-court rulings" which require that state court decisions be given the benefit of the doubt, and the Petitioner bear the burden of proof. Cullen v. Pinholster, 131 S. Ct. at 1398. Further, habeas relief is not appropriate unless each ground supporting the state court decision is examined and found to be unreasonable under the AEDPA. Wetzel v. Lambert, ---U.S.--, 132 S.Ct. 1195, 1199 (2012).
In assessing under section 2254(d)(1) whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, "review... is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. at 1398. Evidence introduced in federal court has no bearing on review pursuant to § 2254(d)(1). Id. at 1400. In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1). A state court decision that was on the merits and was based on a factual determination will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceedings. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
VI. Ineffective Assistance of Counsel
Petitioner contends that his right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments was violated by trial counsel's failure to investigate and present in a timely manner crucial, exculpatory evidence consisting of testimony by Charles Clay, James Batten, and Lynn Chapman, who declared under penalty of perjury that at the time of the shooting, chief prosecution witness Demont Wilson was actually inside the apartment.
A. The State Court Decision
This Court will review the last reasoned decision of a state court on the ineffective assistance of counsel claim. The last reasoned decision must be identified in order to analyze the state court decision pursuant to 28 U.S.C. § 2254(d)(1). Barker v. Fleming, 423 F.3d 1085, 1092 n.3 (9th Cir. 2005); Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003).
Here, the CCA issued a reasoned decision on the ineffective assistance claim, but the CSC denied review. Thus, the CCA's decision was the last reasoned decision in which the state court adjudicated on the merits claims that were presented to the state's highest court. Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This Court will thus "look through" the unexplained decision of the CSC to the CCA's last reasoned decision as the relevant state-court determination. Id. at 803-04; Taylor v. Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004).
The pertinent portion of the CCA's decision is as follows:
A. The Right to Effective Assistance of Counsel The Sixth Amendment to the U.S. Constitution states in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." The Fourteenth Amendment states in pertinent part that "[n]o State shall ... deprive any person of life, liberty, or Gideon v. Wainwright property, without due process of law...." The court in (1963) 372 U.S. 335 held that the Sixth Amendment's right to counsel is one of the "fundamental rights" made obligatory upon the states by (Gideon v. Wainwright, supra the Fourteenth Amendment's guarantee of due process.
, 372 U.S. at p. 342.) The law pertaining to a defendant's claim of a denial of effective assistance of ...