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Willis v. Lizarraga

United States District Court, E.D. California

May 25, 2017

AUSTIN BILLY WILLIS, III, Petitioner,
v.
JOE A. LIZARRAGA, Warden, Mule Creek State Prison, [1] Respondent.

          ORDER

          JAMES K. SINGLETON, JR., Senior United States District Judge

         Austin Billy Willis, III, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Willis is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Mule Creek State Prison. Respondent has answered, and Willis has replied.

         I. BACKGROUND/PRIOR PROCEEDINGS

         On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying this case:

On January 17, 2009, at 2:30 a.m., [Willis] got into a fight at a fast food restaurant drive-thru with Alexander C. and Ulises L. Alexander C. and Ulises L. were holding [Willis] and punching him. They punched him in the face and [Willis] fell to the ground. Eventually when the pair let [Willis] up, he went back to his car, reached in to release the hood, stated he had a gun in his car and yelled “I'm going to kill you.” Alexander C. and Ulises L. got back in their car and drove away. [Willis] followed them, driving a silver Chevy Impala. Alexander C. tried to evade [Willis], but [Willis] continued following them. Eventually Alexander C. and Ulises L. heard what they later identified as gunshots hitting the car.
After the shooting, [Willis] stopped following Alexander C. and Ulises L. Alexander C. then realized he had been shot. Ulises L. called 9-1-1 and Alexander C. was taken by ambulance to the hospital. Alexander C. had sustained a gunshot wound to the abdomen and required surgery to repair his small intestine.
Alexander C. and Ulises L. and witnesses from the fast food restaurant identified [Willis] as the person in the fight at the restaurant. However, Alexander C. and Ulises L. could not identify [Willis] as the shooter. They had not been able to see the driver of the car and they did not see a gun or muzzle flashes. Even so, they recognized the car as the same one [Willis] had been driving at the restaurant.
Sacramento Police Officer Tom Shrum viewed video surveillance taken from the fast food restaurant, and tracked the Impala to a car rental agency. Shrum was informed that [Willis] had picked the car up on January 14, 2009, and the car was scheduled to be returned on Saturday January 17, 2009, at 2:00 p.m. When the manager came back to work on Monday, the car was in the lot. Gunshot residue (GSR) testing found a fairly high concentration of GSR in the car, indicating a weapon had either been discharged within the vehicle near the front headliner or a heavily contaminated article had come in to contact with the headliner. The only person to rent the car after [Willis] and before the GSR testing was done did not own a gun and had not fired one in the car.
Following a jury trial, [Willis] was convicted of two counts of attempted murder (§§ 664/187, subd. (a)), personal discharge of a firearm at an occupied motor vehicle (§§ 246, 12022.53, subd. (d)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The enhancement allegations that as to the attempted murder charges [Willis] had personally used and discharged a firearm causing great bodily injury were found true (§ 12022.53, subds. (b)-(d)). In bifurcated proceedings, the court found the prior strike conviction allegation true.
After trial, [Willis] filed a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) complaining that trial counsel was ineffective in that he did not call a particular witness, Ken A.; did not dispute the evidentiary chain regarding the rental vehicle; refused to file various motions, including a motion to suppress evidence and a section 995 motion; did not challenge the photographic line up; did not communicate with [Willis]; failed to hire a specialist; had no strategy for the defense; and, refused to let [Willis] testify.
In response, counsel explained his trial choices. He chose not to call the witness Ken A. because during their investigation of the case, counsel and the defense investigator spoke with several witnesses, including Ken A., and counsel believed Ken A.'s testimony was cumulative to the testimony of the other witnesses. Ken A. was also “semi-hostile” and “not the greatest witness in the world.” As to the various motions [Willis] wanted filed, they were not filed as there were no legal grounds to file them. Counsel stated he communicated with [Willis] about the strengths and weaknesses of the case, but [Willis] was frequently unwilling to listen. As to [Willis] not testifying, counsel had advised [Willis] not to testify, as his criminal background and history would have impeached him, and counsel did not believe there was any benefit to him testifying. On the record, the court had advised [Willis] he had the right to testify and [Willis] affirmed his choice not to testify.
The court denied the Marsden motion, finding counsel's representation “was well above what one would expect of a competent attorney. I thought he was able in fact to do an exemplary job in terms of his representation.”
[Willis] was then sentenced to an aggregate determinate term of 23 years eight months, plus 50 years to life. [Willis] was ordered to pay $1, 000 in restitution fund fines, and various fines and fees were imposed.

People v. Willis, No. C065346, 2012 WL 681187, at *1-2 (Cal.Ct.App. Mar. 1, 2012).

         Through assigned counsel, Willis appealed his conviction by filing a brief pursuant to People v. Wende, 600 P.2d 1071 (Cal. 1979), whereby appointed counsel filed an appellate brief reciting a summary of the proceedings and the facts of the case and requesting the court to independently review the record because counsel had found no arguable legal issues to raise. Willis also submitted a supplemental brief alleging that trial counsel was ineffective for failing to: 1) call Ken A. as a witness at trial; 2) dispute “broken chain of custody;” 3) prepare critical motions; 4) assert the violation of Willis' speedy trial rights; 4) object to faulty identifications and tainted photo lineups; 5) effectively communicate with Willis; and 6) challenge inconsistent statements made by prosecution witnesses. In a reasoned, unpublished opinion issued on March 1, 2012, the Court of Appeal unanimously affirmed the judgment in all respects. Willis, 2012 WL 681187, at *4. Willis petitioned for review in the California Supreme Court, which was denied without comment on May 16, 2012.

         Willis then filed a pro se petition for habeas relief in the Superior Court. In his state habeas petition, he argued that: 1) the prosecution committed misconduct by knowingly eliciting perjured testimony at the preliminary hearing; 2) the evidence presented by the prosecution was insufficient to sustain his convictions; 3) trial counsel was ineffective for a variety of reasons; and 4) he was denied his constitutional right to testify on his own behalf. The Superior Court denied the petition in an unpublished, reasoned opinion issued on May 6, 2014. Willis raised the same claims in habeas petitions in the California Court of Appeals and California Supreme Court, which were both summarily denied on June 5, 2014, and September 17, 2014, respectively.

         While his state habeas petitions were pending, Willis timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on July 30, 2013. See 28 U.S.C. § 2244(d)(1)(A).

         II. GROUNDS/CLAIMS

         In his pro se Petition before this Court, Willis argues that: 1) the prosecutor committed misconduct by eliciting inconsistent witness testimony; 2) the evidence presented was legally insufficient to sustain his convictions; 3) trial counsel rendered ineffective assistance; and 4) he was denied his right to testify at trial.

         III. STANDARD OF REVIEW

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

         The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.'” Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

         To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).

         In applying these standards on habeas review, this Court reviews the “last reasoned decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

         IV. DISCUSSION

         A. Prosecutorial Misconduct (Ground 1)

         Willis first argues, as he did in his state habeas petition summarily denied by the California Supreme Court, that the prosecutor committed misconduct when he “knowingly elicited and used inadmissible perjured testimony.” “[T]he [Supreme] Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976) (footnotes omitted). The essential elements of such successful claim are that (1) the testimony is false or perjured, (2) the prosecutor knew that the testimony was false or perjured, and (3) the false testimony was material. Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc); see Napue v. Illinois, 360 U.S. 264, 269 (1959); Murtishaw v. Woodford, 255 F.3d 926, 959 (9th Cir. 2001). Thus, if Willis successfully shows that the prosecutor knowingly elicited perjured testimony material to his case, habeas relief may be warranted.

         Although the prosecutor has a duty to refrain from knowingly presenting perjured testimony, United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002), the record does not support Willis' contention that the prosecution knowingly introduced the perjured testimony of Alexander C. at the preliminary hearing. The record indicates that, at the hearing, the prosecutor asked Alexander C. how much he had to drink at the nightclub. Alexander C. responded that he had three beers over a three-hour period at the club. When the prosecutor asked if he had any other alcoholic drinks “over the approximately three-hour period, ” Alexander answered “no.” At trial, the parties stipulated that Alexander C.'s blood alcohol content measured .11 when it was tested at the hospital. On direct examination, the following interaction occurred:

Q: Now, one last thing I want to ask you about. You were told a couple of days ago in a meeting with me that the number of drinks that you claimed to have consumed that night did not match up with your blood alcohol content draw from the hospital.
Do you remember that ...

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