United States District Court, E.D. California
K. SINGLETON, JR., Senior United States District Judge
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.
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
[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).
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.
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.
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. §
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.
STANDARD OF REVIEW
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).
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).
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).
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).
Prosecutorial Misconduct (Ground 1)
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.
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
Do you remember that ...