United States District Court, S.D. California
ORDER (1) ADOPTING REPORT AND RECOMMENDATION; (2) DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS; AND (3) DENYING CERTIFICATE OF APPEALABILITY (ECF
NOS. 1, 15)
JANIS L. SAMMARTINO, District Judge.
Presently before the Court is Magistrate Judge Peter C. Lewis's Report and Recommendation (R&R) advising the Court to deny Petitioner Ray Allen Coles' Petition for Writ of Habeas Corpus. (R&R, ECF No. 15.) Also before the Court are the Petition (ECF No. 1) and the Petitioner's Objections to the R&R (Objections, ECF Nos. 16, 17, 20, 22, & 24). For the reasons stated below, the Court ADOPTS the R&R in its entirety, DISMISSES WITH PREJUDICE Petitioner's writ of habeas corpus, and DENIES a certificate of appealability.
Magistrate Judge Lewis' R&R contains a thorough and accurate recitation of the factual and procedural history underlying the instant motion. (R&R, ECF No. 15 at 2-7.) This Order incorporates by reference the background as set forth in the R&R.
1. Review of the Report and Recommendation
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's report and recommendation. The district court "shall make a de novo determination of those portions of the report... to which objection is made, " and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673-76 (1980). However, in the absence of a timely objection, "the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)).
2. Cognizable Claim for Federal Relief
Under federal law, a prisoner seeking relief on claims related to imprisonment may file a petition for habeas corpus pursuant to 28 U.S.C. § 2254. A federal court "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal intervention in state court proceedings is only justified when there are errors of federal law. Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989). Federal habeas courts are bound by a state's interpretation of its own laws. Estelle v. McGuire, 502 U.S. 62, 68 (1991).
The Antiterrorism and Effective Death Penalty Act ("AEDPA") controls the review of Petitioner's federal habeas petitions. See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). AEDPA establishes a "highly deferential standard for evaluating state-court rulings, " requiring "that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). A federal court can grant habeas relief only when the result of a claim adjudicated on the merits by a state court "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, " or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's decision is "contrary to" clearly established federal law if it (1) applies a rule that contradicts governing Supreme Court authority, or (2) "confronts a set of facts that are materially indistinguishable from" a Supreme Court decision but reaches a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (internal quotation marks omitted) (citation omitted). An "unreasonable" application of precedent "must have been more than incorrect or erroneous"; it "must have been objectively unreasonable.'" Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Further, even if a reviewing federal court determines a constitutional error has occurred, relief is only authorized if the petitioner can show that the "error had a substantial and injurious effect" on his conviction or sentence. Bains v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000).
Petitioner claims that he is being unconstitutionally confined because (1) he received ineffective assistance of trial counsel; (2) the trial court erred in refusing to instruct the jury on accident or misfortune; (3) the trial court erred by permitting the prosecutor to impeach him by questioning him about his prior drug procurement; (4) the trial court erred in instructing the jury on flight; and (5) the trial court's errors cumulated to deny him a fair trial. Petitioner's claims are considered on the merits with a brief summary of the R&R's conclusions and Petitioner's objections.
1. Ineffective Assistance of Counsel
Petitioner alleges Turner ineffectively represented him at trial by: (1) failing to perform an investigation and interview a witness before trial; (2) failing to impeach a prosecution witness; (3) failing to request a limiting instruction; and (4) failing to move for mistrial. Magistrate Judge Lewis concluded that Petitioner failed to establish a valid ineffective assistance of counsel claim. (R&R, ECF No. 15 at 10-19.)
The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, (1984). The benchmark for assessing claims of ineffective assistance of counsel is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Nunes v. Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003.) (quoting Strickland, 466 U.S. at 686). A petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521, (2003).
Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderson, 224 F.3d 972, 981 (9th Cir. 2000). Furthermore, "the likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 131 S.Ct. 770, 792 (2011). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies....if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice....that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697).
In assessing an ineffective assistance of counsel claim "[t]here is a strong presumption that counsel's performance falls within the wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).
A. Failing to Perform an Investigation and Interview a Witness Before Trial
Petitioner contends that Turner's failure to interview Patterson, despite Petitioner's indication to Turner prior to trial that he did not want the witness's presence to "see the light of day, " amounts to ineffective assistance of counsel. (Pet., ECF No. 1 at 23-29.) The R&R concluded Patterson's "testimony was not compelling enough to create a substantial likelihood that the result of Petitioner's trial would be different." (R&R, ECF No. 15 at 15.) Further, Patterson's testimony, albeit favorable to the Petitioner, was "not exculpatory, nor [did] it shed any direct and definitive light on Petitioner's innocence." ( Id. ) Consequently, the R&R determined that the omission of Patterson's testimony did not prejudice Petitioner. ( Id. )
Petitioner reasserts his ineffective assistance of counsel arguments in his objections to the R&R. (Objections, ECF No. 16 at 5-16.) First, Petitioner argues that the California Court of Appeal incorrectly relied on Petitioner's testimony at trial which was intended to discredit Marcum's false cover up story. ( Id. at 7.) Next, Petitioner asserts that because neither Turner nor Petitioner knew Patterson witnessed the incident, the logic of the California Court of Appeal's public policy argument fails. ( Id. at 8.) Petitioner also presents Turner's signed declaration in which Turner admits: "I failed my client by not asserting myself that we had to find and interview Ms. Patterson." ( Id. at 9.) Next, Petitioner contends the R&R failed to adequately consider the reasonableness of the California Court of Appeal's opinion. ( Id. at 11.) In conclusion, Petitioner argues that the length of time the jury took to deliberate along with the number of questions the jurors' asked indicate that the admission of Patterson's testimony "would have been reasonably likely to sway one juror if not more, to vote not guilty." ( Id. at 12.)
Petitioner fails to demonstrate that Turner's decision not to investigate Patterson as a witness was unreasonable. Strickland provides an objective standard for reviewing the reasonableness of counsel's decisions "viewed as of the time of counsel's conduct." 466 U.S. at 688, 690. Therefore, Turner's statements admitting error in the post-trial motion and supporting affidavit are not dispositive of the reasonableness of his decisions before and at the time of trial. (Objections, ECF No. 16 at 8-10.) If the Court relied on these subjective reflections, it would invite the very policy issues the Supreme Court sought to avoid. See Strickland, 466 U.S. at 690 (warning that "the availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges" ...