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Mitcham v. Davis

United States District Court, N.D. California, San Jose Division

May 1, 2015

STEPHEN LOUIS MITCHAM, Petitioner,
v.
RON DAVIS, Acting Warden of California State Prison at San Quentin, [1] Respondent

For Stephen Louis Mitcham, Petitioner: John Francis McCabe, II, LEAD ATTORNEY, Attorney at Law, Burlingame, CA; Karen S Schryver, LEAD ATTORNEY, Gualala, CA; Michael G. Millman, LEAD ATTORNEY, California Appellate Project, San Francisco, CA; Neoma Kenwood, LEAD ATTORNEY, Attorney at Law, Berkeley, CA.

For Acting Warden Jeanne Woodford, Jill Brown, Acting Warden Robert K Wong. Warden Vince Cullen, Acting Warden Michael Martel, Acting Warden Kevin Chappell, Respondents: Rene Antonio Chacon, LEAD ATTORNEY, Attorney at Law, San Francisco, CA.

For Warden Robert L. Ayers, Respondent: Rene Antonio Chacon, CA State Attorney General's Office, San Francisco, CA.

For Habeas Corpus Resource Center, Miscellaneous: Michael David Laurence, Habeas Corpus Resource Center, San Francisco, CA.

California Appellate Project, Miscellaneous, Pro se, San Francisco, CA.

Habeas Corpus Resource Center, Miscellaneous, Pro se, San Francisco, CA.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS AS TO CLAIM D'S SUBCLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

LUCY H. KOH, United States District Judge.

INTRODUCTION

Petitioner was found guilty in 1984 of murder and attempted murder during a robbery. Petitioner is African American. His victims were Caucasian. During voir dire, the prosecutor struck 100 percent (eight of eight) of African Americans called to the jury box. At the time of Petitioner's trial, People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), which held the use of peremptory challenges to strike venirepersons solely on the basis of race to be a violation of the California Constitution, had been the law in California for six years. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), had not yet been decided. Petitioner's counsel did not object under Wheeler to the prosecutor's peremptory challenges. In a subclaim of claim D of his federal habeas petition, Petitioner argues that his trial counsel was ineffective for failing to object to the prosecutor's use of peremptory challenges to strike all African Americans called to the jury box. For the reasons described below, the Court GRANTS the petition for writ of habeas corpus as to claim D's subclaim of ineffective assistance of counsel. The Court dismisses Petitioner's remaining claims as moot.[2]

BACKGROUND

In 1984, a jury in Oakland, California, sentenced Petitioner to death following convictions for first-degree murder, attempted murder, robbery, assault with a deadly weapon, and a special circumstance finding that he committed the murder in the course of robbery. Evidence at trial established that on April 5, 1983, Petitioner robbed Ormond's Jewelry Store in Oakland. During the robbery, Petitioner murdered the proprietor, James Ormond, and attempted to murder Yvette Williams, a store employee whom Petitioner shot in the cheek. The evidence established that Petitioner's co-defendant, Keith Hammond, drove the getaway car after the murder and robbery.

The California Supreme Court affirmed Petitioner's conviction and death sentence on February 24, 1992. People v. Mitcham, 1 Cal.4th 1027, 5 Cal.Rptr.2d 230, 824 P.2d 1277 (1992). The U.S. Supreme Court denied certiorari on October 13, 1992.

Petitioner filed his first state habeas petition on January 7, 1992. The California Supreme Court denied this petition on the merits. In re Mitcham, Cal. S.Ct. No. S024600. Petitioner filed his second state habeas petition on October 13, 1992. The California Supreme Court denied this petition on the merits and on procedural grounds on September 13, 1993. In re Mitcham, Cal. S.Ct. No. S029219. Petitioner filed his third state habeas petition containing unexhausted claims on February 9, 1998. The California Supreme Court denied this petition on the merits and on procedural grounds on December 21, 1999. In re Mitcham, Cal. S.Ct. No. S067887.

On February 11, 1998, Petitioner filed a habeas petition in federal court. The case was assigned to U.S. District Judge Vaughn R. Walker. Petitioner later amended his petition to delete unexhausted claims. An amended petition containing newly exhausted claims was filed on February 4, 2000. Respondent filed an answer on July 23, 2001.

The parties litigated procedural default issues in 2001. On October 28, 2002, Judge Walker issued an order finding certain claims and subclaims partially defaulted. The parties subsequently litigated several motions for summary judgment. In an order filed on June 18, 2010, Judge Walker granted summary judgment on numerous guilt phase claims in favor of Respondent, and requested supplemental briefing in relation to claim D, Petitioner's claim that the prosecutor's use of peremptory challenges to exclude African American jurors violated Petitioner's constitutional rights. (ECF Doc. No. 348.)

On August 25, 2010, Judge Walker granted summary judgment in favor of Respondent on claim D, with the exception of Petitioner's ineffective assistance of counsel subclaim. (ECF Doc. No. 351.) Judge Walker found that " [b]ecause petitioner failed to object to the prosecutor's exercise of peremptory challenges at trial, he has failed to preserve his Batson claim for review on federal habeas." Id. at 4. Although Judge Walker precluded Petitioner from pursuing a Batson claim, Judge Walker allowed Petitioner to proceed with his claim D subclaim that trial counsel's failure to object to the prosecutor's improper peremptory challenges constituted ineffective assistance of counsel. Id.

In a subsequent order, U.S. District Judge Jeffrey S. White, to whom this case was transferred on September 29, 2011, ruled that Batson does not apply to Petitioner's ineffective assistance of counsel subclaim. (ECF Doc. No. 379 at 3.) Because Petitioner was tried in 1984, and Batson was not decided until 1986, Judge White concluded that " [e]valuating trial counsel's performance based on caselaw that had not yet been decided at the time of trial would run counter to Strickland [ v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]'s directive." Id. at 2. Although Judge White precluded Petitioner from pursuing an ineffective assistance of counsel subclaim based on Petitioner's trial counsel's failure to raise a Batson objection, Judge White allowed Petitioner to proceed with Petitioner's subclaim that trial counsel's failure to raise an analogous objection under Wheeler constituted ineffective assistance of counsel. The case was transferred to the undersigned on January 4, 2012. (ECF Doc. No. 386.)

Petitioner thereafter conducted an extensive investigation in relation to the ineffective assistance subclaim based on Wheeler, including a comprehensive survey of the racial composition of Petitioner's entire qualified venire. That investigation consisted of personal interviews of the 117 qualified jurors or their next of kin, as well as obtaining Department of Motor Vehicle photographs and, in some instances, death certificates. The parties' briefs are now ripe for decision. (ECF Doc. Nos. 397, 403, and 407.)

PARTIES' ALLEGATIONS

Petitioner alleges that his trial counsel's failure to object to the use of peremptory challenges by prosecutor Albert Meloling (now deceased) to exclude eight of eight African Americans called to the jury box constituted ineffective assistance of counsel. Petitioner alleges that had trial counsel, Lincoln Mintz (now deceased), and second counsel, Harry Traback, filed a motion under Wheeler objecting to the prosecutor's peremptory challenges, the motion would have been granted, resulting in a new jury venire panel at trial, or a new trial on appeal. Respondent refutes Petitioner's allegations.

JURY SELECTION PROCEEDINGS

Petitioner's counsel, Mintz, was appointed lead trial counsel for Petitioner by the Alameda County Superior Court in April 1983. In December 1983, shortly before the beginning of jury selection, Traback, a former prosecutor, was appointed as second counsel. Traback worked on certain assigned tasks, but he did not make any strategic decisions in Petitioner's case. (ECF Doc. No. 397-1, Ex. 6, Decl. of Harry Traback at 64.) Petitioner's jointly tried co-defendant, Keith Hammond, was represented by Alameda County deputy public defenders Harvey Homel and Diane Bellas. All four defense attorneys agreed to work together in selecting the jury. Mintz, however, was given the authority to exercise all peremptory challenges. (ECF Doc. No. 397-1, Ex. 10, Suppl. Decl. of Diane Bellas at 103.) Meloling was the Alameda County deputy district attorney who prosecuted Petitioner and his co-defendant.

During voir dire, 265 prospective jurors were questioned. Clerk's Transcript (" CT" ) 211-55. Thirty-six of the 265 prospective jurors were African American. (ECF Doc. No. 397, Ex. 1, Decl. of Investigator Melody Ermachild at 4.) Of the 265 venirepersons, ninety-nine were excluded for cause and fifty-five were excluded by stipulation of counsel. CT 211-55. After exclusions for cause and by stipulation, 117 qualified prospective jurors -- all of whom were death qualified -- remained. Of these 117, seventeen were African American. (ECF Doc. No. 397-1, Ex. 1, Decl. of Investigator Melody Ermachild at 4.)

To select the jury, twelve qualified prospective jurors were randomly selected and called to the jury box. The prosecution and defense then alternately used their peremptory challenges to strike prospective jurors. During this process, thirty-one prospective jurors were called to the jury box. Reporter's Transcript (" RT" ) 3968-74. The prosecutor challenged eleven prospective jurors, and defense counsel challenged eight. Thirteen additional prospective jurors were called during the selection of four alternate jurors. Of these, the prosecutor challenged four prospective alternates, while the defense challenged five. RT 3975-78.

The prosecutor used his peremptory challenges to strike every African American called to the jury box. The prosecutor struck each of the five African Americans called during the selection of Petitioner's jury, and each of the three African Americans called as prospective alternates. In sum, of the fifteen prospective jurors struck by the prosecutor, eight were African American: Clarence Spiller, Aunita Jones, Abdulel Luqman, Willetta Combs, Patricia Fuller, Sharon Penn, Beverly Frazier, and Charles Threets. As a result, Petitioner had no members of his race among the twelve jurors and four alternate jurors. (ECF Doc. No. 397-1, Ex. 1, Decl. of Investigator Melody Ermachild at 9.) The empaneled jury consisted of eleven Caucasian jurors and one Hispanic-surnamed juror. Id.

During voir dire, the prosecutor and the four defense attorneys entered an agreement to shorten proceedings by providing each other the names of potential jurors that each side intended to challenge, and to then shorten or forgo questioning of these jurors. (ECF Doc. No. 397-1, Ex. 8, Suppl. Decl. of Harvey Homel at 84-85.) The prosecutor's list of prospective jurors whom he intended to strike included eighteen prospective jurors, eight of whom were African American. (ECF Doc. No. 397-1, Ex. 6, Decl. of Harry Traback at 67.) The defense list consisted of five prospective jurors -- four Caucasians and one Hispanic-surnamed juror. The prosecutor struck four of the eight African American prospective jurors on his list, as well as four other African Americans who were not on the prosecutor's list. Jury selection was completed before the four remaining African American prospective jurors on the prosecutor's strike list, Frank Beavers, Hubert Martin, Anthony Pigrum, and Prettiest Wylie, were called to the jury box. The prosecutor thus struck every African American called to the jury box (eight of eight), and demonstrated to defense counsel an intent to strike twelve African American jurors (i.e., the eight African American jurors who were on the prosecutor's strike list, plus the four who were not on the list, but were called to the jury box and struck by the prosecutor).

The record makes clear that the prosecutor was keeping track of the race of the African American prospective jurors: he wrote " B" next to their names on the qualified jury list and gave them a " failing grade." (ECF Doc. No. 397-2, Ex. 13, Alameda County Jury List.) He did not keep track of the race of any other jurors. The prosecutor's voir dire notes reveal his acceptable juror ratings (a " K" by itself, circled, or " K?" ) and unacceptable ratings (an " O" by itself, or " O?" ). (ECF Doc. No. 397-2, Ex. 15, Deposition of Albert Meloling in Hovey v. Calderon, No. 89-01430-MHP, at 26.) The prosecutor rated all seventeen of the qualified African American jurors with an unacceptable " O" next to their names, with the exception of prospective juror Theodore Carter, who was never called to the jury box.[3] Thus, in addition to the eight African Americans on the prosecutor's strike list and the four additional African American jurors who were not on the prosecutor's strike list but were struck by the prosecutor, there were four more African American prospective jurors whom the prosecutor identified with a " B" and deemed unacceptable: Frances Crockett, Cheryl Favroth, Nathaniel Fripp, and Keith Smith. In total, then, the record shows the prosecutor intended to strike sixteen of the seventeen qualified African American jurors.

Additionally, the prosecutor's handwritten notes during voir dire of African American prospective juror Willetta Combs state that she is " Black" and that: " She has some feelings about death penalty -- but could impose it in a given case. I think she would be alright but she does have some reservations about death -- Keep if necessary to avoid Wheeler -- She would try to be fair." (ECF Doc. No. 397-2, Ex. 14 at 19.)

The prosecutor also struck Caucasian prospective jurors who evidenced a connection to African Americans. The prosecutor challenged Alan Dundes, a Caucasian professor of folklore and anthropology at U.C. Berkeley, who stated that he had an interest in African American culture and had written a book on African American folklore. RT 1727, 1733. The prosecutor also struck Diane Weston, a Caucasian female, after questioning about her husband's employment suggested that he might be African American. (ECF Doc. No. 397-2, Ex. 17, Decl. of Diane Weston.) Indeed, the prosecutor's voir dire notes stated about Weston: " Think her husband is black." (ECF Doc. No. 397-2, Ex. 14 at 20.)

The two defense teams also worked together to numerically rate the jurors who were not on the prosecutor's strike list. The prospective jurors were rated on a scale of 1 to 5, with 5 being the best for the defense. (ECF Doc. No. 397-1, Ex. 6 at 65-66.) As described by co-defendant Hammond's counsel, Diane Bellas:

Mr. Homel and I worked together with Mr. Mintz and Mr. Traback to rate and select the jury. We used a numerical ratings system and collectively rated the jurors. My recall is that the rating was 1 to 5, with 5 being the best rating for the defense. A score of 0 or 1 would indicate a juror most predisposed to conviction and/or the penalty of death and a score of 3 and above would signify an acceptable or good juror for the defense. I believe that in addition to the numerical score, a plus (" " ) signified that the juror had strong convictions, attitudes or leadership potential and a minus (" -" ) signified that the juror had weaker convictions, attitudes or leadership potential.

(ECF Doc. No. 397-1, Ex. 10, Suppl. Decl. of Diane Bellas at 103.)

The defense highly rated four African Americans who were not on the prosecutor's strike list: Clarence Spiller (3 1/2 +*), Aunita Jones (5+*), Abdulel Luqman (4*), and Willetta Combs (4+). Id. at 105.[4] These four individuals highly rated by the defense were eventually called to the jury box. The prosecutor struck all of them. Petitioner's trial counsel did not object to these peremptory challenges even though he had rated them as desirable jurors. Furthermore, the Court notes that although voir dire proceedings lasted more than three months, the parties' exercise of peremptory challenges lasted less than half an hour. RT 3970-78.

The prosecutor did not submit a declaration setting forth his justifications for striking African American jurors. Similarly, Petitioner's lead trial counsel did not submit a declaration explaining his reasons for not raising a Wheeler objection.

PETITIONER'S LEAD TRIAL COUNSEL'S DISBARMENT

The disciplinary history of Petitioner's trial counsel began in 1995 with a private reproval for abandoning a client and failing to participate in the State Bar's disciplinary investigation. (ECF Doc. No. 397-2, Ex. 12 at 9.) In 1997, the State Bar suspended him for ninety days, stayed the suspension, and placed him on two years' probation for failing to comply with the conditions of his private reproval. Id. at 9-10. In 1999, the State Bar suspended him for two years, stayed the suspension, and placed him on three years' probation with a nine-month actual suspension for failing to communicate with two clients, to comply with his probationary terms, and to cooperate with eight State Bar disciplinary investigations. Id. He was ultimately disbarred in September 2000 as a result of his misconduct, including professional wrongdoing dating back to 1968. Id. at 9.

DISCUSSION

A. Procedural Default

As a threshold matter, Respondent asserts that Petitioner's subclaim is procedurally defaulted because the California Supreme Court rejected it on the procedural ground that it could have been, but was not, raised on direct appeal, a procedural bar established in In re Dixon, 41 Cal.2d 756, 264 P.2d 513 (1953). See Lodged Ex. FF. The Dixon bar, according to Respondent, forecloses federal review of Petitioner's subclaim. The Court notes, however, that in a motion seeking dismissal of defaulted claims filed in 2001, Respondent acknowledged that a Dixon default does not bar federal habeas review of Petitioner's claims. (ECF Doc. No. 227 at 5.)

Respondent's 2001 position is the correct one. Under the doctrine of procedural default, federal courts will not review " a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). " For a state procedural rule to be 'independent,' the state law basis for the decision must not be interwoven with federal law." La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001) (citing Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). A state law ground is interwoven with federal law in those cases where application of the state procedural rule requires the state court to resolve a question of federal law. Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (citing Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)). Independence is measured at the time when the default is announced by the state court. See Vaughn v. Adams, 116 Fed.Appx. 827, 828 (9th Cir. 2004) (looking to the date the " habeas petition was denied by the California Supreme Court" in determining whether a Dixon default was " an independent procedural bar" ); Jones v. Ayers, No. CIVS972167MCECMK, 2008 WL 906302, at *27 (E.D. Cal. Mar. 31, 2008) (explaining that " the independence of the Dixon default is determined as of 2003, when it was imposed" by the state court in that case).

For a state procedural rule to be " adequate," it must be clear, well-established, and consistently applied. Calderon v. U.S. Dist. Ct. (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996). The issue of whether a state procedural rule is adequate to foreclose federal review is itself a federal question. Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (quoting Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)). The adequacy of a state procedural rule must be assessed as of the time when the petitioner committed the default. See Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001) (stating that " a state rule must be clear, consistently applied, and well-established at the time of petitioner's purported default" for purposes of " the adequacy prong" ); see also Fields v. Calderon, 125 F.3d 757, 760-61 (9th Cir. 1997) (" With respect to the Dixon rule, we have held that a relevant point of reference for assessing [adequacy] is the time at which the petitioner had an opportunity to raise the claims on direct appeal." (internal quotation marks omitted)).

In 1993, the date when the state court found Petitioner's subclaim procedurally barred, the California Supreme Court's application of Dixon was not independent of federal law. See Park, 202 F.3d at 1152-53. In Park, the Ninth Circuit made clear that " prior to 1998," when In re Robbins, 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998), was decided, " the California Supreme Court necessarily made an antecedent ruling on federal law before applying the Dixon bar to any federal constitutional claims raised" on state habeas. Park, 202 F.3d at 1152-53. In other words, " before Robbins, the Dixon rule was interwoven with, and not independent from, federal law." Bennett v. Mueller, 322 F.3d 573, 582 (9th Cir. 2003) (internal quotation marks omitted). The California Supreme Court's application of Dixon in the instant case, which occurred five years before Robbins, was therefore not independent of federal law.

Respondent's citations to the contrary are inapposite because they all concerned post- Robbins state court applications of the Dixon rule. See Flores v. Roe, No. F 02 5296 WMW HC, 2005 WL 1406086, at *11 (E.D. Cal. June 14, 2005) ( Dixon default " occurred in 1999, making it a post- Robbins default" ), aff'd, 228 Fed.Appx. 690, 691 (9th Cir. 2007); see also Roevekamp v. Choates, No. CV 12-3845-CAS CW, 2013 WL 2456615, at *1-2 (C.D. Cal. June 5, 2013) (California Supreme Court's application of Dixon, which occurred on March 28, 2012, was " post- Robbins " ); Roberts v. Uribe, No. 11CV2665-WQH BLM, 2013 WL 950703, at *2-4 (S.D. Cal. Feb. 6, 2013) (California Supreme Court's application of Dixon, which occurred on February 1, 2012, was post- Robbins ); Lee v. Mitchell, No. CV 01-10751-PA PLA, 2012 WL 2194471, at *19-20 (C.D. Cal. May 1, 2012) ( Dixon default was " post- Robbins " ); Cantrell v. Evans, No. 2:07-CV-1440-MMM, 2010 WL 1170063, at *1, *13-14 (E.D. Cal. Mar. 24, 2010) (state court application of Dixon occurred no earlier than September 25, 2006, when the Shasta County Superior Court " invoked the procedural bar" ).

Additionally, at the time of Petitioner's direct appeal in 1988, the Dixon rule was not adequate. This is so because, as the Ninth Circuit has held, Dixon defaults occurring before the California Supreme Court's 1993 decisions in In re Harris, 5 Cal.4th 813, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993), and In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993), are " not an adequate state ground to bar federal habeas review." Fields, 125 F.3d at 763; see also La Crosse, 244 F.3d at 705 (" We have previously held that, at least prior to 1993, neither California's Dixon rule nor its untimeliness rule was an adequate and independent state law ground that could bar federal review." ). Respondent fails to cite any controlling authority to the contrary. What authority Respondent does cite only supports the Court's conclusion. See, e.g., Roevekamp, 2013 WL 2456615, at *3 (explaining that the Ninth Circuit has found " the [ Dixon ] rule to be inadequate at a time prior to the California Supreme Court's 1993 decision in In re Harris " ).

For the aforementioned reasons, Petitioner's ineffective assistance of counsel subclaim is not procedurally defaulted.

B. Standard of Review

Habeas petitions filed after April 24, 1996, such as Petitioner's, are governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (" AEDPA" ). See Mann v. Ryan, 774 F.3d 1203, 1209 (9th Cir. 2014). However, because the state court denied relief on procedural grounds and did not reach the merits of Petitioner's ineffective assistance of counsel subclaim, this Court's review of that subclaim is de novo, rather than subject to AEDPA's deferential standard that applies to " any claim that was adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d); see James v. Ryan, 733 F.3d 911, 914 (9th Cir. 2013) ( " Where a state court does not reach the merits of a federal claim, but instead relies on a procedural bar later held inadequate to foreclose federal habeas review, we review de novo." (internal quotation marks omitted)), cert. denied, 134 S.Ct. 2697, 189 L.Ed.2d 740 (2014); Scott v. Ryan, 686 F.3d 1130, 1133 (9th Cir. 2013) (per curiam) ( applying " de novo " review, rather than AEDPA deference under § 2254(d), " because, although the claims were presented to the state postconviction court, that court dismissed the claims on purely procedural grounds" ); see also Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005) ( applying de novo standard of review to a First Amendment habeas claim that was denied solely on procedural grounds by state court); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) ( de novo review, rather than AEDPA's deferential standard, applies to a claim that was not adjudicated on the merits in state court); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003) (AEDPA applies to petition but not to petitioner's due process claim because state court did not reach its merits).

AEDPA nonetheless governs any factual determinations made by the state court, which are " presumed to be correct" and can only be rebutted " by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Khalifa v. Cash, 594 Fed.Appx. 339, 341 (9th Cir. 2014) (" [E]ven reviewing [petitioner's] constitutional claim de novo, AEDPA still mandates that factual determinations by the state court are presumed correct and can be rebutted only by clear and convincing evidence" (internal quotation marks omitted)); Lewis, 391 F.3d at 996 (reviewing " de novo whether [petitioner] waived his right to conflict free counsel, while deferring to any factual findings made by the state court under 28 U.S.C. § 2254(e)(1)" ).

C. Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel is cognizable as a denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance, of counsel. Strickland, 466 U.S. at 686. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.

In order to prevail on an ineffective assistance of counsel claim, a petitioner must first show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed by the Sixth Amendment. Id. at 687. A petitioner must show that counsel's representation fell below an objective standard of reasonableness. Id. at 688. The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Counsel's performance must be evaluated " 'as of the time of counsel's conduct.'" Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (quoting Strickland, 466 U.S. at 690).

Second, a petitioner must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 688. The defendant must show 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 ...


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