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Llamas v. Seibel

United States District Court, N.D. California

August 31, 2017

LEONARD L. LLAMAS, Plaintiff,
v.
KIMBERLY A SEIBEL, Defendant.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Petitioner 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.

         BACKGROUND

         A. Procedural Background

         In 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).

         While 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).

         Llamas 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.

         B. Factual Background

         The 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.

         LEGAL STANDARD

         Under 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 (2000).

         “Under 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 409.

         DISCUSSION

         Petitioner 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

         Llamas 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.

         Llamas brought this same claim before the state appellate court on direct appeal, which summarized the relevant facts as follows:

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 defense.”

Pet., Ex. D at 4.

         The 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.

         A 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.

         The 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.

         The 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.

         Llamas 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).

         Llamas's 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.

         The 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.

         II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

         Llamas 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 closing arguments.

         In 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.

         “Judicial 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).

         A.Failure to Present Exculpatory Photographs

         Llamas 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 prejudicial.

         Llamas 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 burden.

         1.The Police Photographs

         Llamas 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.

         Llamas 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).

         Llamas's 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.[1] However, the court noted that the motion was a good reminder for the parties to comply with their disclosure obligations.

         The 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.

         Llamas 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 ...


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