United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY
LUCY H. KOH, District Judge.
Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 10, 2012, the court ordered respondent to show cause why the petition should not be granted. On December 28, 2012, respondent filed an answer. On January 8, 2013, respondent filed a supplemental answer. After receiving several extensions of time, on April 7, 2014, petitioner filed a traverse. After being directed by the court to file a supplemental brief, and to address the issue of exhaustion, if any, on September 30, 3014, respondent filed a motion to dismiss several claims for failure to exhaust. On December 10, 2014, petitioner filed an opposition thereto. Respondent did not file a reply. Having reviewed the submitted pleadings and the underlying record, the court concludes that petitioner is not entitled to relief based on the claims presented, and DENIES the petition on the merits.
On March 9, 2009, a jury found petitioner guilty of 25 counts, including: torture; corporal injury to a spouse; assault likely to produce great bodily injury; aggravated mayhem; making criminal threats; witness intimidation; stalking; unlawful possession of a firearm by a felon; and unlawful possession of ammunition. (Resp. Memo. P & A at 1.) On June 2, 2009, the trial court sentenced petitioner to a term of 20 years plus 28 years to life in state prison. ( Id. )
On October 29, 2010, the California Court of Appeal affirmed petitioner's conviction and judgment. (Resp. Ex. E.) On January 26, 2011, the California Supreme Court denied petitioner's petition for review. (Resp. Ex. G.) Petitioner then filed unsuccessful state habeas petitions in Superior Court, the Court of Appeal, and the California Supreme Court. (Resp. Exs. H-N.)
On January 9, 2012, petitioner filed the underlying federal petition for writ of habeas corpus.
Defendant and his spouse met in early 1986 when she was pregnant with her older daughter, and they married in 1989. They lived in a rural part of Monterey County and had a daughter together in 1993. Defendant was abusive toward his spouse from the beginning of their relationship. He constantly questioned her about her conversations with others and about her past sexual history, and he constantly hit her with his hands and with items such as a belt, a mallet, or a baseball bat. The physical abuse caused bruising, swelling, scratch marks, a concussion, and, at one time, a torn ACL. Defendant also burned the side of his spouse's face with hot barbeque tongs. He admitted that he put a GPS device on her car so that he could track her whereabouts. His spouse attempted suicide once by taking an overdose of pills in September 2006.
Defendant learned about tattooing as a teenager, and his spouse willingly allowed defendant to put "dozens of tattoos" on her body. However, she testified that she told him that she did not want some of the tattoos he gave her. The unwanted tattoos were the subject of the mayhem counts alleged against defendant.
(Resp. Ex. E at 3-4.)
A. Standard of Review
This court may entertain a petition for writ of habeas corpus "in 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). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the reasonable application clause, ' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, the application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
In the petition, petitioner claims that: (1) trial counsel rendered ineffective assistance; (2) appellate counsel rendered ineffective assistance; (3) petitioner was denied a fair trial when the trial court discharged a "holdout" juror, and the prosecutor committed misconduct; and (4) petitioner was prejudiced from the cumulative effect of the errors.
1. Ineffective assistance of trial counsel
Petitioner asserts that counsel had a conflict of interest and was ineffective in several ways: (1) by failing to apply for bail; (2) by failing to investigate petitioner's mental status; (3) by failing to move to suppress seized evidence; (4) by committing fraud upon the Superior Court; and (5) by moving to withdraw as counsel and allowing an inexperienced junior associate to take over the case.
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "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.
Petitioner argues, however, that the court should not evaluate his claim under Strickland, but rather, under Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980). Specifically, petitioner claims that counsel, who was retained, harbored an active conflict of interest between representing petitioner and maximizing counsel's own financial interest.
The Sixth Amendment's right to conflict-free counsel is violated only if the conflict "adversely affected" trial counsel's performance. Alberni v. McDaniel, 458 F.3d 860, 870 (9th Cir. 2006). "[A]n actual conflict of interest mean[s] precisely a conflict that affected counsel's performance - as opposed to a mere theoretical division of loyalties." Mickens v. Taylor, 535 U.S. 162, 171 (2002) (emphasis omitted). A conflict of interest can arise when counsel represents multiple defendants whose interests are hostile to one another. In order to establish a violation of the Sixth Amendment, a petitioner must demonstrate that: (1) counsel actively represented conflicting interests, and (2) an actual conflict of interest adversely affected counsel's performance. Sullivan, 446 U.S. at 348-50.
Fatal to petitioner's argument here, is the fact that the Supreme Court has not extended Sixth Amendment conflict of interest jurisprudence beyond conflicts involving multiple concurrent representation. Mickens, 535 U.S. at 162, 174-76. Indeed, the Supreme Court has held that conflicts other than multiple representation, such as conflicts based on financial issues, are not constitutionally based. Id. at 174-75; see, e.g., Foote v. Del Papa, 492 F.3d 1026, 1029 (9th Cir. 2007) (affirming district court's denial of petitioner's habeas claim alleging a violation of his right to conflict-free appointed appellate counsel because no Supreme Court case has held an irreconcilable conflict between the defendant and his appointed appellate counsel violates the Sixth Amendment, nor has the Supreme Court held that a defendant states a Sixth Amendment claim by alleging that appointed appellate counsel had a conflict of interest due to the defendant's dismissed lawsuit against the public defender's office and appointed pre-trial counsel); Earp v. Ornoski, 431 F.3d 1158, 1184 (9th Cir. 2005) (rejecting conflicts claim when defense counsel and client had an intimate relationship, and stating, "While our circuit's precedent has expanded the scope of the Sullivan exception to apply in other contexts, and while we strongly disapprove of [counsel's] unprofessional behavior as reflected in her conduct at bar, the advent of AEDPA forecloses the option of reversing a state court determination simply because it conflicts with established circuit law."). Thus, petitioner's allegation that counsel's financial interest competed with counsel's representation of petitioner does not present an "actual conflict." See, e.g., Williams v. Calderon, 52 F.3d 1465, 1473 (9th Cir. 1995) (finding no actual conflict when inmate alleged that any payment for additional investigation would have come from counsel's personal pocket); Arenas v. Adams, No. CV 08-7084-AHM (RCF), 2011 WL 7164453, at *12-13 (C.D. Cal. filed Nov. 30, 2011) (unpublished) (finding no actual conflict when inmate alleged that counsel was interested in concluding the case as quickly as possible due to the fact that a flat fee was paid by inmate's mother to represent him).
Accordingly, petitioner's argument that the court should evaluate his claim of ineffective assistance under the Sullivan standard is not well-taken.
A. Failure to apply for bail
Petitioner argues that counsel failed to move to have petitioner released on bail. Petitioner states that, had he been released on bail, he could have assisted counsel more easily in preparing for his defense. Petitioner's claim that counsel was ineffective for not requesting bail fails because petitioner has not shown a reasonable probability that his pretrial release on bail would have altered the result of trial. See Percival v. Marshall, No. 93-20068 RPA, 1996 WL 107279, at *2 (N.D. Cal. March 7, 1996) ("Not being free on bail pending trial does not affect final disposition."), aff'd by No. 96-15724, 106 F.3d 408 (9th Cir. 1997) (unpublished memorandum disposition).
Apparently, bail was initially set at $2, 000, 000. (Traverse at 6.) To the extent petitioner argues that counsel should have argued that bail was excessive, that claim is not properly before this court because petitioner raises it for the first time in his traverse. A traverse is not the proper pleading to raise additional grounds for relief. In order for the respondent to be properly advised of additional claims, they should be presented in an amended petition or in a statement of additional grounds. Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). Only then can the respondent answer the claims and the action can proceed. Id.
Nonetheless, even assuming this claim is properly before the court, it is without merit because petitioner fails to show prejudice. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. The Bail Clause requires that, when bail is set, it cannot be excessive. See Carlson v. Landon, 342 U.S. 524, 545 (1952). However, the Bail Clause does not require that bail be available in all cases. See United States v. Salerno, 481 U.S. 739, 752-54 (1987). "Neither the Supreme Court nor [the Ninth Circuit has] held that the Clause is incorporated against the States." Galen v. County of Los Angeles, 477 F.3d 652, 659 (9th Cir. 2007) (assuming without deciding that the excessive bail clause of the Eighth Amendment applies to the states in a Section 1983 case). In order to succeed on a motion that bail was excessive, petitioner would have had to show that bail was set for purposes not authorized by California law, or that the amount of bail was excessive in light of the valid purposes for which it was set. Id. at 660-61. In addition, prior to setting bail, California law requires the trial court to take into consideration factors such as: the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case." Cal. Penal Code § 1275(a)(1). When considering the seriousness of the offense charged, the trial court must consider the alleged injuries and threats made to the victim. Id. § 1275(a)(2).
Here, there were ample claims of the alleged injuries and threats to the victim ("Jane Doe"). Petitioner's statements that he had strong ties with the community and never failed to appear in court do not acknowledge that the trial court was also required to consider the seriousness of the offenses when determining the amount of bail. Moreover, the setting of bail is a discretionary matter for the trial court. In short, petitioner provides no evidence or argument that the purpose for setting bail was unauthorized, or that the amount of bail was excessive in light of such purpose. Thus, petitioner has failed to show that he was prejudiced by counsel's decision not to argue that the bail was excessive.
Accordingly, this claim is without merit.
B. Failure to investigate mental status
Petitioner argues that counsel should have investigated the possibility of a mental defense or pursued a plea of not guilty by reason of insanity or diminished capacity.
The Superior Court rejected this claim as follows:
Finally, Petitioner alleges that his trial counsel was ineffective because he failed to investigate the defense of not guilty by reason of insanity. Again, Petitioner does not provide any evidence indicating that his attorney was aware of facts, or should have been aware of facts, to render such a viable defense. Petitioner attached documents showing that he qualified for mental health services while incarcerated; however, the dates of these services occurred after Petitioner had already been convicted and sentenced to four life terms. Inmates commonly require mental health services for a variety of reasons. Furthermore, a defendant may, upon a showing of good cause, change his not guilty plea to a plea of not guilty by reason of insanity even after his trial has begun. ( People v. Lutman (1980) 104 Cal.App.3d 64.) The fact that Petitioner's trial counsel did not raise this defense does not in itself demonstrate a deficient or prejudicial performance. A conviction will be set aside only "when the record demonstrates there could have been no rational tactical purpose for counsel's challenged act or omission." ( People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.)
(Resp. Ex. J at 3-4.)
Petitioner's claim that counsel should have investigated a diminished capacity defense is unpersuasive. The defense of diminished capacity was abolished in California in 1982. Daniels v. Woodford, 428 F.3d 1181, 1208 n.29 (9th Cir. 2005). Because petitioner did not begin a relationship with Jane Doe until 1986, none of the charged offenses occurred until after the diminished capacity defense was already unavailable. Therefore, a diminished capacity defense was unavailable to petitioner. See Sully v. Ayers, 725 F.3d 1057, 1070 (9th Cir. 2013) (recognizing that because the charged offenses occurred after 1982, no diminished capacity defense was available).
Moreover, petitioner has not provided any evidence to demonstrate that counsel had notice of any facts sufficient to give rise to a duty to investigate the possibility of a mental defect defense. In addition, even if the court were to find that petitioner has shown deficient performance on the part of his trial attorney, petitioner must also establish prejudice resulting from that deficient performance. This he has not done. Petitioner merely asserts that, because of the crimes charged against him, counsel should have questioned petitioner's mental state. However, petitioner has not identified anything in the record that explains the nature or extent of any mental disease, defect, or disorder from which he could have suffered at the time of his offense. Although petitioner attached copies of several of his mental health records, those records are from 2009 and 2010 (Pet., Ex. 19), after petitioner had already been convicted of the underlying offenses in 2009. Moreover, the records merely show that petitioner received mental health evaluations in 2009 and 2010, and suffered from depression. Thus, the records are not persuasive in demonstrating that petitioner suffered from any mental disease or defect from the time petitioner began his relationship with Jane Doe in 1986 up to the date of the last charged offense in 2007. Petitioner has not shown that any mental disorder may have affected him at the time of the offense in such a way that he did not and could not form the specific intent required for his convictions. He has not demonstrated through the record that, had counsel investigated petitioner's mental condition, counsel would have obtained evidence tending to show that petitioner was afflicted by a mental disorder that affected him at the time of the offense in such a way that he did not form the specific intent required to commit the charged offenses. Consequently, petitioner has not shown there was a reasonable probability that, but for counsel's failure to investigate the possibility of a mental defect defense, the result of the trial would have been different. See Gonzalez v. Knowles, 515 F.3d 1006, 1015-16 (9th Cir. 2008) (rejecting petitioner's ineffective assistance claim for failing to investigate a mental illness defense when petitioner did not allege that he actually suffered from any mental illness because speculation is insufficient to establish prejudice). Accordingly, petitioner has not established that he was denied the effective assistance of counsel in this claim.
C. Failure to file motion to suppress
Petitioner claims that counsel failed to file a motion to suppress after approximately ten searches and seizures occurred with and without warrants. Respondent argues that each of the exhibits admitted into evidence at trial were obtained through a search warrant or through the consent of Jane Doe, who was petitioner's spouse and the victim.
In order to establish ineffective assistance of counsel based on defense counsel's failure to litigate a Fourth Amendment issue, petitioner must show that: (1) the overlooked motion to suppress would have been meritorious, and (2) there is a reasonable probability that the jury would have reached a different verdict absent the introduction ...