United States District Court, N.D. California
LEONARD L. LLAMAS, Plaintiff,
KIMBERLY A SEIBEL, Defendant.
ORDER DENYING PETITION FOR WRIT OF HABEAS
WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE
Leonard L. Llamas seeks federal habeas relief from his state
conviction of willful infliction of corporal injury on a
cohabitant. Petitioner raises six claims for habeas relief:
(1) the trial court erred by denying his Faretta
motion to represent himself; (2) defense counsel rendered
ineffective assistance by failing to present evidence showing
the condition of the petitioner's clothing and body at
the time of his arrest; (3) defense counsel rendered
ineffective assistance by failing to object to inadmissible
hearsay statements by bystanders at the scene; (4) defense
counsel rendered ineffective assistance by failing to object
to prosecutorial misconduct during closing argument; (5) the
trial court coercively handled the deadlocked jurors; and (6)
cumulative error. For the reasons set forth below, none of
these claims have merit. Llamas's petition for habeas
relief is DENIED.
February 2012, a Santa Clara County Superior Court jury found
Llamas guilty of one count of willful infliction of corporal
injury on his cohabitant, Stephanie Martinez. Cal. Penal Code
§ 273.5(a). Llamas received a sentence of eight years in
state prison. Petition (“Pet.”) at 11 (Dkt. No.
1). On June 23, 2015, Llamas's conviction and sentence
were affirmed on his direct appeal in the California Court of
Appeal. Pet., Ex. D (“State Appellate Opinion,
People v. Llamas, No. H039026”) (Dkt. No.
1-1). He raised almost all of the claims he asserts here on
direct appeal, but did not raise his ineffective assistance
of counsel claim for failure to introduce exculpatory
photographs. See Answer, Ex. D (Dkt. No. 13-12).
his direct appeal was pending, Llamas filed a petition for a
writ of habeas corpus with the California Court of Appeal,
asserting all the claims he raises here except his
Faretta claim. See Answer, Ex. J (Dkt. No.
13-13). His petition for a writ of habeas corpus was
summarily denied by the California Court of Appeal on June
23, 2015, the same day as his direct appeal. Pet., Ex. E
(Dkt. No. 1-1).
then filed a petition for habeas relief before the California
Supreme Court, raising his three ineffective assistance
claims and a claim of cumulative error. He did not raise the
Faretta claim or the jury coercion claim in his
Supreme Court habeas petition that he brings here as
independent claims. See Answer, Ex. M (Dkt. No.
13-13). On September 30, 2015, the California Supreme Court
denied Llamas's petition for review in People v.
Leonard Llamas and summarily denied his petition for
writ of habeas corpus. Pet., Ex. F (Dkt. No. 1-1), Pet., Ex.
G (Dkt. No. 1-1). This federal habeas petition followed.
following factual background is taken from the order on
direct appeal of the California Court of Appeal:
In October 2011 Martinez and defendant spent approximately
two hours at a club called Sabor in downtown San Jose, during
which time Martinez drank two alcoholic drinks. Martinez and
defendant had been dating for over three years and she was
pregnant with his child. Police asked the couple to leave
Sabor around 11:00 p.m. due to an altercation between
Martinez and two or four other women. Martinez and defendant
proceeded to a second club, where they stayed until 2:00 a.m.
After leaving the second club, Martinez was assaulted on the
street and the identity of the assailant was disputed at
trial. According to Martinez's testimony, “those
girls” with whom she had an altercation at Sabor
attacked her, leaving her with a black eye and a bloody nose.
Martinez testified that defendant tried to protect her and
picked her up after the girls fled.
A different version of the assault came from Tarrel Thomas,
who testified for the prosecution at defendant's trial.
Thomas testified that between 2:00 and 2:30 a.m., he and a
few friends were talking on the sidewalk near the
intersection of St. James Street and East Third Street in
downtown San Jose. . . .
Defendant approached the group, asked for a cigarette, and
told them “about how he had just knocked somebody over
trying to help his girlfriend.” When Martinez walked
around the corner into Thomas's view, defendant pointed
her out and referred to her as a “bitch” and
“ ‘my baby mama.' ” As defendant left
to join Martinez, Thomas turned and began talking to his
friends and then “heard the sound of somebody getting
hit.” Thomas turned and saw Martinez on the ground
about 15-20 yards away, with defendant punching and kicking
her and he also saw defendant hit Martinez by her hair. At
the time, Martinez “[l]ooked like she was knocked
out.” Thomas stated that defendant was the only person
he saw assault Martinez. Thomas and his friends confronted
defendant, who threatened them and then eventually
“walked off” before the police arrived. . . .
Robert Van Peteghem, a firefighter and paramedic for the San
Jose Fire Department, was the first responder who initially
treated Martinez at the scene. When Van Peteghem arrived,
Martinez was lying face up surrounded by bystanders at the
corner of St. James Street and East Third Street. Martinez
had a hematoma on her head and was actively bleeding from her
mouth and nose. During the interaction, Martinez had an
“altered level of consciousness.” She knew her
name but had difficulty answering other questions. When Van
Peteghem asked her how she received her injuries,
“[s]he said her boyfriend hit her.” Defendant was
arrested a short time later a few blocks away.
Pet., Ex. D at 2-3.
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), this Court may entertain a petition
for writ of habeas corpus “in behalf of a person in
custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). The petition may not be granted with respect
to any claim that was adjudicated on the merits in state
court unless the state court's adjudication of the 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). “Under the ‘contrary
to' clause, a federal habeas court may grant the writ if
the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the] Court has
on a set of materially indistinguishable facts.”
Williams (Terry) v. Taylor, 529 U.S. 362, 412-13
the ‘unreasonable application' clause, a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Id. at 413.
“[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that
the relevant state court decision applied clearly established
federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Id. at
411. A federal habeas court making the “unreasonable
application” inquiry should ask whether the state
court's application of clearly established federal law
was “objectively unreasonable.” Id. at
alleges that the trial court erred by denying his
Faretta motion to represent himself; that his
counsel was ineffective for several different reasons; that
the trial court erred by coercing the deadlocked jury; and
that the cumulative errors at trial merit relief. Each of
these claims for relief is addressed below.
I. FARETTA MOTION
claims that the trial court erroneously denied his motion to
represent himself at trial, in violation of his
constitutional right to self-representation, and that this
error was prejudicial. Pet. at 14. He asserts that he brought
a timely Faretta motion to represent himself and
that, as a result, the trial court was required to grant it.
Pet. at 35. Conversely, he states that if the motion was
untimely, the trial court abused its discretion by denying
his motion. Pet. at 39.
brought this same claim before the state appellate court on
direct appeal, which summarized the relevant facts as
After the jury was empaneled, defendant made an oral
Faretta motion to dismiss his appointed attorney and
represent himself. The court explained the potential
disadvantages of waiving his Sixth Amendment right to counsel
and defendant acknowledged them. Though the case had
previously been in a time-not-waived posture, defendant
indicated he was requesting a “time waiver” along
with his request to represent himself. Defendant sought a
continuance so that he could investigate the case, which he
estimated would take six months. He stated that he did not
make the request earlier because he was previously unaware
that Martinez would be unavailable. When the court asked
defendant if he would be willing to proceed even if the court
denied his request for a continuance, defendant said he would
be willing to go forward but that the trial “would be a
circus act ... because I would be fumbling the ball”
and that his “defense would end up being a no
Pet., Ex. D at 4.
state appellate court concluded that Llamas's
Faretta motion was untimely because he made the
request after the jury was empaneled and because he did not
have a reasonable excuse for not moving earlier. Id.
at 9-10. It further held that, under California law, the
trial court did not abuse its discretion in denying
Llamas's motion because granting the motion would have
resulted in a substantial delay of the proceedings. Because I
conclude that the California Court of Appeal's decision
was not clearly contrary to clearly established Supreme Court
precedent, habeas relief is not appropriate on this claim.
criminal defendant has a Sixth Amendment right to conduct his
own defense. See Faretta v. California, 422 U.S.
806, 832 (1975). In Faretta, the Supreme Court held
that a trial court may violate this right by denying a
defendant's motion to represent himself, often called a
Faretta motion. Id. at 835. However, as
“Faretta itself and later cases have made
clear  the right of self-representation is not
absolute.” Indiana v. Edwards, 554 U.S. 164,
171 (2008). For example, in holding that Faretta's
request to represent himself should have been granted, the
Court relied heavily on the specific facts of his case,
noting that the request was made weeks before trial, was
clear and unequivocal, and that Faretta was literate,
competent, and understanding. Id. at 835. The
Court's reliance on these facts indicates that a court is
not clearly required to grant a Faretta request
under different circumstances. When a court must grant a
Faretta motion and when it may deny one remains
largely unsettled by the Supreme Court.
Supreme Court has not clearly addressed when a
Faretta motion must be made in order to be
“timely.” See Marshall v. Taylor, 395
F.3d 1058, 1061 (9th Cir. 2005). Faretta lays out an
implicit timing element, as the Court emphasized in its
discussion and holding that Faretta's motion should have
been granted, in part, because it was brought “weeks
before trial.” Id. at 1060-1061; Moore v.
Calderon, 108 F.3d 261, 265 (9th Cir. 1997). But, beyond
establishing an implicit timing element, and making clear
that a motion brought “weeks before trial” is
“timely, ” Faretta, does not provide any
additional guidance on when a Faretta motion is
timely or untimely and the Supreme Court has not clarified
the issue in any subsequent decisions. For the purposes of
AEDPA review, “[b]ecause the Supreme Court has not
clearly established when a Faretta request is
untimely, other courts are free to do so as long as their
standards comport with the Supreme Court's holding that a
request ‘weeks before trial' is timely.”
Marshall, 395 F.3d at 1061.
California Court of Appeal found Llamas's
Faretta request untimely because it was made on the
first day of trial, after the jury had been empanelled.
See Pet., Ex. D at 9-10. Because the timing of
Llamas's request was made on much shorter notice than the
“weeks before trial” in Faretta, the
state court's conclusion that the request was untimely
does not run afoul of the Supreme Court's
Faretta ruling or any other clearly established
Supreme Court precedent. See Marshall, 395 F.3d at
1061 (California Court of Appeal did not violate clearly
established Supreme Court precedent by concluding that a
Faretta motion, brought on the first day of trial
was untimely). The Court of Appeal's conclusion that
Llamas's request was untimely was not contrary to clearly
established federal law.
argues that, even if the request to represent himself was
untimely, the trial court abused its discretion by denying
the request. Llamas points to California cases for the
proposition that when a Faretta motion is deemed
“untimely” it is left to the discretion of the
trial court to determine whether the request should be
granted or denied. See People v. Lynch, 50 Cal.4th
693, 721-722 (Cal.Ct.App. 2010); People v. Windham,
19 Cal.3d 121, 128 (Cal.Ct.App. 1997). He argues that, under
these cases, a trial court abuses its discretion by denying a
Faretta request that is made for “a legitimate
reason, where there is no request for a continuance, [and]
where there is no reason to believe there would be any delay
or disruption.” See Nicholson, 24 Cal.App.4th
584, 593 (Cal.Ct.App. 1994).
assertion that the trial court abused its discretion under
these California precedents is not a cognizable habeas claim
in federal court. “[I]t is not the province of a
federal habeas court to reexamine state-court determinations
on state-law questions.” Estelle v. McGuire,
502 U.S. 62, 67-68 (1991). The California Court of Appeal
determined, under California legal precedents, that the trial
court did not abuse its discretion when it denied
Llamas's untimely Faretta request. This
decision, based on the court's application of California
case law, is not reviewable in federal court.
Court of Appeal's rejection of Llamas's
Faretta claim was not contrary to clearly
established Supreme Court precedent and is therefore entitled
to AEDPA deference. Llamas's request for habeas relief on
the basis of this claim is DENIED.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
raises three claims of ineffective assistance of counsel. He
asserts that his trial counsel was ineffective because he (i)
failed to present evidence of the condition of his clothing
and body at the time of his arrest, (ii) failed to object to
inadmissible hearsay statements by bystanders at the scene,
and (iii) failed to object to prosecutorial misconduct during
order to prevail on an ineffectiveness of counsel claim,
petitioner must establish two things. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). First, he must
establish that counsel's performance was deficient, i.e.,
that it fell below an “objective standard of
reasonableness” under prevailing professional norms.
Strickland, 466 U.S. at 687-88. Second, he must
establish that he was prejudiced by counsel's deficient
performance, i.e., that “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694.
scrutiny of counsel's performance must be highly
deferential” and “a court must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.” See
Strickland, 466 U.S. at 689; Sanders v.
Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994).
“There is a ‘strong presumption' that
counsel's attention to certain issues to the exclusion of
others reflects trial tactics rather than ‘sheer
neglect.'” Harrington v. Richter, 131
S.Ct. 770, 790 (2011) (citations omitted).
to Present Exculpatory Photographs
asserts that his trial counsel, Khan, provided ineffective
assistance by failing to present exculpatory photographs of
Llamas's clothing and body at trial. Llamas contends that
his counsel's failure to present these exculpatory photos
fell below an objective standard of reasonableness and was
raised this claim in his habeas petitions before the
California Court of Appeal and the California Supreme Court.
The claim was summarily denied without discussion.
“Where a state court's decision is unaccompanied by
an explanation, the habeas petitioner's burden still must
be met by showing there was no reasonable basis for the state
court to deny relief.” See Harrington v.
Richter, 562 U.S. 86, 98 (2011). Llamas has not met this
asserts that police took photos of him and his clothing at
the scene of the crime, and that his attorney was inadequate
by failing to acquire and present these photos at trial.
Id. at 45. Llamas has failed to demonstrate that his
attorney acted unreasonably by failing to acquire and present
the police photos.
declares that shortly after he was detained, he was taken to
a gas station near the scene “where [his] hands and
body and clothing were photographed by a police
officer.” Pet. Ex. B. ¶ 4. This account is
supported by the police record in the case, which indicates
that “photographs were taken of Mr. Llamas” as
the scene. Reporter's Transcript (“RT”) at
338-340 (Dkt. No. 13-9).
attorney took steps to acquire these photos. In his in
limine motions submitted before trial, Khan asked the
court to order the prosecution to produce “all
photographs, witness statements, potentially exculpatory
evidence, documents, witness names . . . and physical
evidence in advance of opening statement.” See
Clerk's Transcript Vol. 1 (“CT Vol. 1”) at 76
(Dkt. No. 13-3). The trial court declined to specifically
rule on the motion, noting that the prosecution was already
legally obligated to provide the requested information.
See RT at 38-39. However, the court noted that the
motion was a good reminder for the parties to comply with
their disclosure obligations.
prosecution never produced any photographs, possibly because
there were no photographs to produce. Khan declares that he
was “never made aware that any photos of Mr. Llamas
actually existed.” Pet. Ex. A ¶ 5. At trial,
Officer Garlit testified that he had not seen any photographs
of Llamas and had no personal knowledge that any photographs
had actually been taken. RT 338-340. Although Llamas declares
that the police took photos of him, and the police reports
support this, he has never been able to confirm that the
prosecution actually had photographs of his clothing and
hands taken at the scene.
asserts that Khan did not make a reasonable effort to acquire
the police photos because he “did not take any steps to
enforce the discovery order requiring that they be
produced.” Pet. at 49. This argument is not persuasive.
As the trial court recognized, Khan's in limine
request for the photos mirrored the disclosure obligations
the prosecution already had. Because the prosecution had an
existing obligation to produce any relevant photographs, Khan
reasonably could have taken no steps to obtain the photos and
simply relied on the prosecution to produce them, as required
by law. Despite this, Khan took the extra step of filing an
in limine motion, specifically requesting this
evidence, and reminding the prosecution to comply with its
disclosure obligations. Llamas asserts that after Khan filed
his in limine motion, he acted unreasonably by
failing to take additional steps to “enforce the
discovery order.” But, as the record shows, there was
no discovery order; the prosecution was obligated by law, not
court order, to produce any ...