United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
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
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).
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.
presented multiple petitions for writ of habeas corpus to the
state courts including the California Supreme Court. All of
the petitions were denied. (LD 17-32.)
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.)
Court adopts the Statement of Facts in the Fifth DCA's
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.
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
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.
Legal Standard of Review
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.
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).
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.
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.
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).
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).
Review of Claims
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 §
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).
Prosecutorial Misconduct - Perjury
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.
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
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
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.
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.
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.)
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.)
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.)
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.)
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
Prosecutorial Misconduct - Failure to Disclose Immunity
Agreement and Refreshing Recollection with Another
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.
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.)
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.)
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
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.
Ineffective Assistance of Counsel - Failure to Impeach
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.
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
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).
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”).
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.
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.
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
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
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.)
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, ...