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Derwin Lee Butler v. M.D. Mcdonald

January 10, 2013


The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge



Derwin Butler [Petitioner] a prisoner in the custody of the California Department of Corrections, raises a single ground for relief in the present §2254 Petition: that the trial court abused its discretion in failing to appoint new counsel to investigate his claims of ineffective assistance of counsel for purposes of a new trial motion. The California Court of Appeal rejected this claim in a reasoned opinion. The State courts' denial of the claim was reasonable and precludes relief.


A jury found petitioner guilty of three counts of robbery, three counts of assault with a firearm, burglary and child endangerment in violation of California Penal Code Sections 211, 213.254(a)(2), 459 and 273a. The jury found true the allegations that petitioner personally used a firearm, personally discharged a firearm, and personally used a semi-automatic handgun. (Lodgment 2 at 1 CT 190-191.) Petitioner was sentenced to thirty-five years and four months in State prison. (Lodgment 2 at 1 CT 294-295; 2 CT 315-316).

Petitioner appealed. (Lodgment 3) On September 29, 2011, the California Court of Appeal affirmed the Judgment. (Lodgment 6) Petitioner filed a Petition for Review (Lodgment 7). On December 21, 2011, the California Supreme Court denied review (Lodgment 8).

On June 27, 2012, petitioner filed this Petition, raising one claim. A Return was filed on August 22, 2012. Petitioner filed a Reply on September 17, 2012. The parties have consented to jurisdiction of the Magistrate Judge.


The standard of review applicable to petitioner's claim herein is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):

"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 unreasonable determination of the facts in light of the evidence presented in the State court proceedings."

Under the AEDPA, the term "clearly established Federal law" means "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); see also Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("clearly established Federal law" consists of holdings, not dicta, of Supreme Court decisions "as of the time of the relevant state-court decision"). However, federal circuit law may still be persuasive authority in identifying "clearly established" Supreme Court law or in deciding when a state court unreasonably applied Supreme Court law. See Tran v. Lindsey, 212 F.3d 1143, 1154 (9th Cir.), cert. denied, 531 U.S. 944 (2000).

A state court decision involves an "unreasonable application" of clearly established federal law if "the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, supra, 529 U.S. at 413; Woodford v. Visciotti, 537 U.S. 19, 24-27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). A federal habeas court may not overrule a state court decision based on the federal court's independent determination that the state court's application of governing law was incorrect, erroneous or even "clear error." Lockyer, supra, 538 U.S. at 75. Rather, a decision may be rejected only if the state court's application of Supreme Court law was "objectively unreasonable." Id.; Woodford, supra; Williams, supra.


At the time set for sentencing, petitioner filed a letter with the Court requesting a Marsden hearing. (Lodgment 2 at 3 CT 530; Sup. CT 2-3). In his letter, petitioner asserted his attorney was refusing to file a new trial motion. Petitioner additionally identified the following grounds requiring the trial court to appoint new counsel, all of which revolved around trial strategy: 1) counsel had refused to allow him to testify; 2) counsel had refused to call witness Keyona West to provide alibi testimony; 3) counsel had refused to call Michelle Nicholes from the Department of Justice to provide photos and evidence regarding the gun that was recovered; 4) counsel had refused to call Deputy Hurian to provide testimony that he recovered a silver handgun ...

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