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Donley v. Beard

United States District Court, E.D. California

March 30, 2017

JEFFREY BEARD, Respondent.



         Petitioner is currently serving a determinate sentence of 8 years and 8 months for his conviction of assault with a deadly weapon. In this action, Petitioner claims the prosecutor committed misconduct for various reasons, his trial and appellate counsel provided him ineffective assistance, that the jury was biased against him and the trial court improperly imposed a sentence enhancement. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.


         Petitioner was convicted in the Madera County Superior Court on May 23, 2013, of one count of assault with a deadly weapon (Cal. Penal Code § 245(a)(1)), and two counts of felony vandalism (Cal. Penal Code § 594(b)(1)). People v. Donley, No. F067912, 2015 WL 3493260, *1 (Cal.Ct.App. 2015). Four prior prison term enhancements were also found to be true pursuant to Cal. Penal Code § 667.5(b). Id.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). The Fifth DCA stayed the eight-month term imposed for the vandalism convictions and remanded the case to the trial court to amend the abstract of judgment. Id. In all other respects, the judgment was affirmed on June 2, 2015. Id.

         Petitioner presented multiple petitions for writ of habeas corpus to the state courts including the California Supreme Court. All of the petitions were denied. (LD[1] 17-32.)

         On December 4, 2015, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. No. 1). Respondent filed an answer on April 8, 2016. (Doc. No. 14). Petitioner filed a traverse to Respondent's answer on June 20, 2016. (Doc. No. 21.)


         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[2]:

The Trial
Donley was Angela Floyd's ex-fiancé and was involved in a relationship with her for almost three years. By January 2013, the relationship had ended and Floyd was living alone in Ahwahnee, in a studio apartment that was attached to the garage of a house belonging to Marius Crisan, a retired police sergeant.
On January 17, 2013, Donley made several calls to Floyd during which he told her he wanted to take Floyd a file cabinet that belonged to her. Floyd told him not to come over, that she did not want to be with him anymore, and that he was not welcome on the property. Nevertheless, at around noon that day, Donley drove his truck to see Floyd. Crisan overheard Donley arguing with Floyd in her room and told him to leave, which he eventually did.
At approximately 1:00 p.m., Donley returned to Floyd's residence with her file cabinet in the back of his truck and pushed the cabinet off the truck. As Donley yelled at Floyd through a closed door, Crisan again confronted Donley and told him to leave. Donley replied, “Are you going to make me go, old man?” Crisan replied, “Well, if I have to, I will.” Donley got angrier and started walking toward Crisan, which prompted Crisan to pull out a gun and point it at Donley. After a few more comments were exchanged, Donley got in his truck. Instead of leaving, however, Donley drove his truck in reverse over the file cabinet and got stuck. When he managed to get free, he drove about 400 feet to the end of the driveway and stayed there for approximately 20 minutes yelling at Floyd.
After dark, while Roger Clark was visiting Floyd, Donley called again asking her to let him come over. Within seconds after Floyd told Donley that Clark was there, Donley appeared in his truck in Crisan's driveway with his bright lights on. Floyd went outside her studio with Clark, saw Donley ram Clark's truck with his truck, and ran back to her studio. As she stood in the doorway, Floyd heard Donley say he was going to kill her. He then drove his truck full throttle at the studio, put on his brakes, and slid 20 feet into the doorway where Floyd had been standing, breaking the frame. Floyd managed to avoid being hit by doing a “back flip” over her bed. Meanwhile, Donley put the truck in reverse, hit Clark's truck again, and drove off.
Donley was arrested later that night at his mother house.

Donley, 2015 WL 3493260, at *1.


         A. Jurisdiction

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Madera County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         B. Legal Standard of Review

         A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his 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); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

         A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406).

         In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103.

         The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims “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.” Wiggins v. Smith, 539 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court's factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

         To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we independently review the record, we still defer to the state court's ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

         The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).

         C. Review of Claims

         The instant petition presents the following grounds for relief: 1) The prosecutor committed misconduct by suborning perjury from the victim; 2) The prosecutor committed misconduct by failing to disclose an immunity agreement, and by refreshing the victim's recollection by another person's statement; 3) Defense counsel rendered ineffective assistance by failing to impeach the victim with her prior testimony; 4) The prosecutor committed misconduct be calling attention to Petitioner's silence while in custody; 5) The prosecutor committed misconduct by providing late discovery of jail telephone calls; 6) Trial counsel was ineffective in numerous instances; 7) Appellate counsel rendered ineffective assistance by failing to raise the issue of late discovery; 8) The jury was biased; and 9) The trial court improperly imposed an enhancement pursuant to Cal. Penal Code § 667.5.

         Except where noted, Petitioner's claims were presented in habeas petitions to the state courts. Although the state courts denied the claims on the merits, they did not provide a reasoned decision. To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991). Where the state court decided the petitioner's claims on the merits but provided no reasoning for its decision, the federal habeas court conducts “an independent review of the record . . . to determine whether the state court [was objectively unreasonable] in its application of controlling federal law.” Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2002). “[A]lthough we independently review the record, we still defer to the state court's ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

         1. Prosecutorial Misconduct - Perjury

         Petitioner first alleges the prosecutor committed misconduct by introducing perjured testimony of the victim. Petitioner claims that the victim lied when she testified that Petitioner yelled, “I'm going to kill you after all, bitch!” prior to ramming his truck into the doorway of her residence. He further claims the victim lied when she testified that Petitioner beat her with a belt on a previous occasion. He contends the prosecutor knew or should have known this testimony was false.

         a. Legal Standard

         A petitioner is entitled to habeas corpus relief if the prosecutor's misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To constitute a due process violation, the prosecutorial misconduct must be “of sufficient significance to result in the denial of the defendant's right to a fair trial.” Greer v. Miller, 485 U.S. 756, 765 (1987) (quoting United States v. Bagley, 473 U.S. 667 (1985)). Any claim of prosecutorial misconduct must be reviewed within the context of the entire trial. Id. at 765-66; United States v. Weitzenhoff, 35 F.3d 1275, 1291 (9th Cir. 1994). The court must keep in mind that “[t]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor” and “the aim of due process is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused.” Smith v. Phillips, 455 U.S. 209, 219 (1982). If prosecutorial misconduct is established, and it was constitutional error, the error must be evaluated pursuant to the harmless error test set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). See Thompson, 74 F.3d at 1577 (Only if constitutional error is established “would we have to decide whether the constitutional error was harmless.”).

         The knowing use of false or perjured testimony against a defendant to obtain a conviction is unconstitutional. Napue v. Illinois, 360 U.S. 264 (1959). In Napue, the Supreme Court held that the knowing use of false testimony to obtain a conviction violates due process regardless of whether the prosecutor solicited the false testimony or merely allowed it to go uncorrected when it appeared. Id. at 269. The Court explained that the principle that a State may not knowingly use false testimony to obtain a conviction - even false testimony that goes only to the credibility of the witness - is “implicit in any concept of ordered liberty.” Id. Nevertheless, simple inconsistencies in testimony are insufficient to establish that a prosecutor knowingly permitted the admission of false testimony. United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir.1995). “Discrepancies in . . . testimony . . . could as easily flow from errors in recollection as from lies.” Id.

         b. Analysis

         The claim fails on its face because Petitioner does not demonstrate that the victim's testimony was false. The victim stated that as Petitioner backed up and immediately before accelerating his vehicle into her house, Petitioner yelled, “I'm going to kill you after all, bitch.” (RT 712.) Petitioner contends this testimony was false since no other witnesses testified to hearing this statement. While witnesses Davis and Clark did not testify that Petitioner stated anything prior to ramming his vehicle into the residence, this does not show that the victim committed perjury. The fact that the victim was the only one to testify to hearing this statement does not render her statement false. Zuno-Arce, 339 F.3d at 889-90. Rather, the alleged inconsistencies and the credibility of the witnesses were factual determinations for the jury. From the evidence, a rational jurist could have found her testimony to be true. Therefore, Petitioner fails to show that the prosecutor committed misconduct.

         The claim that the victim's preliminary hearing testimony and trial testimony were inconsistent also fails. That the statements were inconsistent does not render the testimony false. At trial, the victim testified that on a previous occasion on May 14, 2012, Petitioner had struck her with a belt and with his hands while the victim was naked. (RT[3] 740.) The victim also testified that an officer asked her to take off her sweater to look at her marks, but she declined to do so because she felt embarrassed and “stupid” from all the belt marks over her arms and back. (RT 742.)

         During the preliminary hearing concerning the May 14 incident, the victim testified that she did not remember the entirety of that previous incident. (LD 31, Prelim. Hr'g Tr. at 4, 19-20.) Concerning the belt, the victim initially stated she did not remember if somebody had a belt. (LD 31, Prelim. Hr'g Tr. at 20.) However, the victim testified that she did remember talking to an officer later that evening and recalled showing the officer her arms which had bruises up and down. (LD 31, Prelim. Hr'g Tr. at 21.) She testified that she didn't remember how she sustained those bruises, but she vaguely referenced having done some yardwork. (LD 31, Prelim. Hr'g Tr. at 21-22.) When asked whether she recalled telling an officer that Petitioner had grabbed her arms and pushed her up against a wall, she stated she did not. (LD 31, Prelim. Hr'g Tr. at 26.) She stated she did not recall having told an officer that the petitioner struck her arm with an open hand. (LD 31, Prelim. Hr'g Tr. at 27.) She also stated she did not recall having told an officer that the petitioner struck her with a belt in the same area, though she stated she did recall telling the officer about a belt. (LD 31, Prelim. Hr'g Tr. at 27.) The victim at one point testified that the petitioner “did not hurt [her] on purpose.” (LD 31, Prelim. Hr'g Tr. at 28.) She admitted later that Petitioner wielded a belt and struck her, “[b]ut not purposely.” (LD 31, Prelim. Hr'g Tr. at 37.)

         Investigating officers also testified at the preliminary hearing concerning the May 14, 2012, incident. Officer Leibee testified that she contacted the victim on May 14, 2012, and the victim advised her that the petitioner had gotten mad at her because she didn't return home promptly from the store. (LD 31, Prelim. Hr'g Tr. at 46, 54.) Leibee also testified that she asked the victim to remove her sweater; the victim did, and Leibee observed bruises across both arms. (LD 31, Prelim. Hr'g Tr. at 53.) The victim told Leibee the bruises were a result of Petitioner grabbing her arms. (LD 31, Prelim. Hr'g Tr. at 53.) The victim also told Leibee that Petitioner slapped her on the left arm with an open hand. (LD 31, Prelim. Hr'g Tr. at 54.) She told Leibee that Petitioner then struck her in the same area with a belt. (LD 31, Prelim. Hr'g Tr. at 55.) In addition, the victim stated Petitioner punched her in the shoulder. (LD 31, Prelim. Hr'g Tr. at 56.) Officer Leibee viewed injuries on the victim's body consistent with her statement. (LD 31, Prelim. Hr'g Tr. at 56-57.)

         Officer Grijalva interviewed Maria Suarez who had been present during the incident. (LD 31, Prelim. Hr'g Tr. at 70.) Suarez stated she heard the victim and Petitioner arguing in another room. (LD 31, Prelim. Hr'g Tr. at 70.) At one point she heard a slapping sound and then heard the victim screaming and yell, “You're killing me.” (LD 31, Prelim. Hr'g Tr. at 70.) This went on for a period of 30 to 40 minutes whereupon Suarez left to go to the nearby 7-Eleven to buy minutes for her cell phone so she could call 9-1-1. (LD 31, Prelim. Hr'g Tr. at 71.) When she returned to the residence, she went to her bedroom. (LD 31, Prelim. Hr'g Tr. at 71-72.) Soon thereafter, Petitioner ran into her bedroom and told her he needed help because he thought he had broken the victim's ribs. (LD 31, Prelim. Hr'g Tr. at 72.) Suarez then went into the room and saw the victim lying naked on the floor with several red welts all over her arms. (LD 31, Prelim. Hr'g Tr. at 72.)

         The victim's testimony at the preliminary hearing and her testimony at trial were not inconsistent as to any material fact. The victim did not deny that Petitioner beat her during the May 14, 2012, incident. In fact, she admitted that he had struck her. Moreover, based on the testimonies of the investigating officers and the victim, there was overwhelming evidence that Petitioner had beat her on that date. Certainly, based on the victim's trial and preliminary hearing testimonies, a rational jurist could have concluded that there was no reason for the prosecutor to believe the victim's trial testimony was false. The claim should be rejected.

         2. Prosecutorial Misconduct - Failure to Disclose Immunity Agreement and Refreshing Recollection with Another Person's Statement

         Petitioner next alleges the prosecutor committed misconduct by failing to disclose that she gave the victim immunity on two drug-related offenses in exchange for her trial testimony. Petitioner further faults the prosecutor for using statements made by another to refresh the victim's recollection.

         a. Analysis

         The same legal standard set forth above applies here. In addition, the “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Wearry v. Cain, 136 S.Ct. 1002, 1006 (2016) (quoting Brady, 373 U.S. at 87.)

         Here, there is no indication of a deal between the prosecutor and the victim for her testimony. In fact, the record shows otherwise. When the victim was asked whether she testified so as to avoid arrest on outstanding drug-related bench warrants, the victim stated she had been arrested when she arrived to testify. (RT 755.) Defense counsel wisely did not pursue the matter further. (RT 755.)

         Petitioner also contends that the prosecutor committed misconduct by utilizing a police report of the incident to refresh the victim's recollection because the police report contained statements made by others. Respondent is correct that determining what types of writings may be used to refresh a victim's recollection is a matter of California evidentiary law, which cannot be reviewed on habeas. Estelle v. McGuire, 502 U.S. 62, 72 (1991). Moreover, there is no Supreme Court precedent which holds that refreshing a witness' recollection with another's statement violates a defendant's constitutional rights. In fact, it is generally held that the memorandum used to refresh a present memory may be made by one other than the witness, the established rule being that it is not the memorandum that is the evidence, but the recollection of the witness. See Johnston v. Earle, 313 F.2d 686 (9th Cir. 1962); Hoffman v. United States, 87 F.2d 410, 411 (9th Cir. 1937) (“It is not so important when the statement was made or by whom if it serves the purpose to refresh the mind and unfold the truth.”); United State v. Riccardi, 174 F.2d 883 (3rd Cir. 1949), cert. denied, 337 U.S. 941 (1949); Head v. Logan, 39 Cal.App.2d 243, 245 (Cal.Ct.App. 1940). Petitioner's conclusory assertion of a due process violation neither carries his burden of proof of establishing misconduct by the prosecution nor converts this state law question into a cognizable matter on federal habeas review. Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (a petitioner may not transfer a state law issue into a federal one merely by asserting a violation of due process).

         For the foregoing reasons, the state court's rejection of Petitioner's claims of prosecutorial misconduct were not contrary to or an unreasonable application of Supreme Court authority. The claim should be denied.

         3. Ineffective Assistance of Counsel - Failure to Impeach Victim

         Petitioner claims that defense counsel failed to impeach the victim using her conflicting, prior testimony. He contends defense counsel failed to properly prepare for the cross-examination of the victim, and failed to effectively cross-examine the victim. He argues that had counsel properly prepared and engaged in an effective cross-examination, the victim's perjury on direct examination would have been revealed.

         a. Legal Standard

         Effective assistance of counsel is guaranteed by the Due Process Clause of the Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of counsel are reviewed according to Strickland's two-pronged test. Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986); see also Penson v. Ohio, 488 U.S. 75(1988) (holding that where a defendant has been actually or constructively denied the assistance of counsel altogether, the Strickland standard does not apply and prejudice is presumed; the implication is that Strickland does apply where counsel is present but ineffective).

         To prevail, Petitioner must show two things. First, he must establish that counsel's deficient performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, Petitioner must establish that he suffered prejudice in that there was a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. Id. at 694. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial. Id. The relevant inquiry is not what counsel could have done; rather, it is whether the choices made by counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).

         With the passage of the AEDPA, habeas relief may only be granted if the state-court decision unreasonably applied this general Strickland standard for ineffective assistance. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Accordingly, the question “is not whether a federal court believes the state court's determination under the Strickland standard “was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Knowles, 556 U.S. at 123. In effect, the AEDPA standard is “doubly deferential” because it requires that it be shown not only that the state court determination was erroneous, but also that it was objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations”).

         b. Analysis

         Petitioner concedes that defense counsel, Anita Torres, was provided discovery of all evidence concerning allegations of prior acts of domestic violence committed by him. He also concedes that defense counsel requested and obtained a 60-day continuance of trial in order to gather evidence concerning the May 14, 2012, incident that the prosecution indicated they were going to raise at trial. He further states that counsel received the transcript of the preliminary examination concerning the May 14 incident.

         At trial, the victim testified that she was beaten with a belt while naked. (RT 740.) She testified that Petitioner struck her with his hands. (RT 740.) In addition, she stated she was embarrassed to take her sweater off for the officer in order to view her bruising. (RT 742.) Petitioner contends these statements were inconsistent or false in light of her testimony at the preliminary hearing, and he faults defense counsel for failing to cross-examine her on these points.

         In his habeas petition to the California Supreme Court, Petitioner attached the informal response of trial counsel concerning the claim she failed to adequately represent Petitioner by impeaching the victim with her prior testimony. Defense counsel stated:

Petitioner's claim is meritless. There is absolutely no evidence that Ms. Floyd committed perjury during her testimony. Prior to the commencement of trial, I urged Petitioner many times to accept a plea bargain, due to the fact that the evidence against him was very strong and was likely to include significant domestic violence prior acts. I reviewed with Petitioner the prior acts evidence which the prosecutor informed me she was going to seek to admit. I advised Petitioner that the effect of this evidence upon his trial would likely be devastating. The overall effect of the prior acts evidence showed that Petitioner had habitually abused Ms. Floyd in an extremely cruel manner. Petitioner was convinced that the preliminary hearing transcripts in yet a different prior acts case (which the prosecution was not seeking to admit) would prove Ms. Floyd to be a liar.
However, that was simply not true. I obtained those transcripts and in them, Ms. Floyd essentially admitted that the domestic violence perpetrated by Petitioner had taken place. However, she broke down on the witness stand and said that she did not want to press charges against Petitioner because “they had been doing so well together” shortly before his arrest. At no time in that hearing did Ms. Floyd state that she had lied to the police or that the abuse did not occur. The fight with Anthony Belt was in addition to the domestic violence which she had suffered.
Indeed, one of the most powerful moments of trial was when Ms. Floyd testified that Petitioner had “beat her with a belt naked.” I'm not certain if this was the same incident as case F12903497, (the case which Petitioner erroneously believes proves that Ms. Floyd perjured herself) where she reported to police that Petitioner “struck her several times with a belt.” I can say for certain that Ms. Floyd's testimony was entirely credible. At the end of her testimony, an absolute pall fell over the courtroom. Every single one of the jurors was looking at Petitioner and my stomach sank because I knew that, barring some miracle, we had just lost the case. I whispered to Petitioner that Ms. Floyd had won the jury over and he shrugged, as though her testimony had not meant anything whatsoever. He also stated that he was “rolling the dice” and did the hand gesture of throwing dice. Another client of mine, who had a court date during Petitioner's trial, complained to me that Petitioner was bragging distastefully to the other inmates in lock-up about various acts of domestic violence he had committed against Ms. Floyd. Furthermore, Petitioner had explicitly told me that the reason he was taking his case to trial (against my advice) was because he was certain Ms. Floyd would not testify against him (not because he was factually innocent).
Moreover, Ms. Floyd's testimony regarding Petitioner's assault with a deadly weapon was 100% consistent with her statements to the police. She had told the police immediately after the incident that she did not see Petitioner driving the truck; however, she believed he was the driver because she recognized his voice. Petitioner was yelling at her as he drove towards her and almost hit her with his truck (I don't have a copy of the record and don't recall at this time what he said). Ms. Floyd also believed that Petitioner was driving because of the fact that he had driven to her residence earlier in the day in the same truck and was harassing her and would not leave her residence.
I have tried many cases and as a result, have a good feel for when a case is close, when the prosecution is winning, and when I am winning. In this case, it was crystal clear to me that the evidence against Petitioner was overwhelming. As a result, I made the tactical decision to limit my impeachment of Ms. Floyd. This decision was based on three specific reasons. First, she was holding up well against my attempts to impeach her and I did not believe that she would break under cross-examination. For example, when I asked her, “Isn't the only reason you're here today because there is a no-bail warrant out for your arrest? She responded while crying, “No, I'm here because my oldest daughter told me that I'm her role model and that's why I should testify against him.” I don't have a copy of the record so that is not an exact quote; but Ms. Floyd's response was something very close to that. It was quite powerful and indicated to me that she was not going to break.
Second, Ms. Floyd was consistent in her statements that she was not able to see the driver of the truck. This allowed me to argue that it was not proved beyond a reasonable doubt that Petitioner was driving the truck. Because the circumstantial evidence against Petitioner was very strong, I believed that it was outright impossible to win the trial. I also believed that we had one slim chance to hang it - which was to hope that there was one very literal-minded person on the jury, who would be persuaded by the fact that there was no direct evidence against Petitioner. You can't have your cake and eat it too; and therefore, in order to make this argument, I had to ascribe some credibility to Ms. Floyd. I made the tactical decision to limit my impeachment of her, so that I could argue that the victim herself, a credible witness, admitted that she never saw Petitioner driving the truck.
Third, I limited my impeachment of Ms. Floyd because I was very fearful of emphasizing the prior acts evidence. It was extraordinarily clear from hearing the prior acts evidence on direct examination that Ms. Floyd had been a domestic violence victim at the hands of Petitioner for years and that Petitioner had been extremely cruel to her. I believed that delving into these prior acts in even more detail while trying to show minor or irrelevant inconsistencies would further alienate the jury, and hinder my attempt to get a hung jury. Regarding Petitioner's claims that I should have argued self-defense, Petitioner refused to testify. There was no evidence to support a self-defense claim, because the encounter with Marius Crisan had taken place earlier in the day and the court had ruled that that incident was not a basis for self-defense.
In the end, the evidence against Petitioner was overwhelming. There was absolutely no way to win the trial with the existing evidence, both for and against Petitioner. Although I used excellent judgment, was extremely well prepared, and fought very spiritedly for Petitioner, I am not a magician and cannot create good facts out of thin air. In fact, after the trial, several jurors including the foreperson stayed behind to speak with me and the prosecutor. The jurors told me that I had done an excellent job and that they gave a lot of thought to my reasonable doubt argument; however, they also told me that they completely believed Ms. Floyd and were convinced that they had reached the correct verdict.

(LD 31 at 350-353.)

         Counsel's informal response reveals three tactical reasons she had for not cross-examining the victim concerning the minor inconsistencies in her trial testimony. First, she felt that the victim was holding up well against her attempts to impeach her as evidenced on several occasions during questioning. She felt that the victim would not break under further cross-examination. Second, the victim was consistent in her testimony that she was not able to see who the driver of the vehicle was. Defense counsel made a tactical decision to argue reasonable doubt as to the identity of the driver. In order to do this, counsel had to ascribe some credibility to the victim's testimony. Cross-examining her further would only undermine this tactic. Third, ...

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