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O'Brien v. McEwen

United States District Court, E.D. California

October 29, 2019

SEAN ALAN O'BRIEN, Petitioner,
v.
LELAND McEWEN, Warden, Respondent.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner commenced this federal habeas action in 2010, challenging his 2006 conviction for first degree murder with special circumstances, resulting in a sentence of life without parole, plus ten years. The conviction was based on the murder of Kyle Smelser in 2003, when petitioner was sixteen years old. On April 16, 2014, the district judge adopted August 19, 2013 findings and recommendations and denied the petition. A certificate of appealability was issued as to whether petitioner's trial attorney, James Clark, rendered ineffective assistance of counsel.

         On August 23, 2015, the Ninth Circuit Court of Appeals affirmed in part and reversed in part, remanding for an evidentiary hearing with respect to several sub-claims of ineffective assistance. This hearing was held before the undersigned on January 17 and 18, 2017. Petitioner was represented by David Nickerson and Scott Tedmon, and defendant was represented by Max Feinstat and Tami Krenzin. After the hearing, the parties submitted post-hearing briefs, with the matter submitted in September 2017. (ECF Nos. 83, 90 & 93.)

         II. The Ninth Circuit's Remand

         In Claim 6, the petition asserted thirteen sub-claims of ineffective assistance of counsel. (Ptn. at 118-121.) The district court found the state courts' denial of these claims objectively reasonable under AEDPA. (See ECF No. 27 (“F&Rs”) at 58-67, ECF No. 31.)

         The Ninth Circuit reversed the denial of petitioner's IAC claim “to the extent the claim is predicated on alleged deficiencies in trial counsel's presentation of O'Brien's defense[.]” (ECF No. 43 at 8.) It ordered an evidentiary hearing with respect to the allegations referenced in Claim 6, summary paragraphs (c), (d), (e), (f), (h), (i), (k), and (m) of O'Brien's federal habeas petition. (Id. at 8-9.)

         In its order of remand, the Ninth Circuit wrote:

The state court's application of Strickland[1] to [the above sub-claims] was objectively unreasonable. Because the state court denied O'Brien's request for an evidentiary hearing and did not issue an order to show cause, the state court's task under Strickland was to decide whether the allegations in O'Brien's habeas petition, if true, established a prima facie case of ineffective assistance. See Cannedy v. Adams, 706 F.3d 1148, 1160 (9th Cir. 2013).
The state court rejected [these claims] on the ground that, even if counsel's performance in presenting O'Brien's defense was deficient, O'Brien failed to establish prejudice under Strickland. . . . [Thus] O'Brien needed to show that, but for counsel's allegedly deficient performance, there is a reasonable probability that at least one juror would have credited the additional evidence and harbored a reasonable doubt about his guilt. See Cannedy, 706 F.3d at 1166. To make that determination, the court had to ‘compare the evidence that actually was presented to the jury with that which could have been presented had counsel acted appropriately.” Id. at 1163.
. . .
Because the allegations on O'Brien's federal habeas petition establish a colorable claim for relief, and because the allegations are not inherently incredible or refuted by the existing state court record, the district court could not reject his [IAC] claim without holding an evidentiary hearing. See Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005)[2]; cf. Hibbler v. Benedetti, 693 F.3d 1140, 1149 (9th Cir. 2012).

(ECF No. 43 at 5-6, 8.)

         In Hibbler, the Ninth Circuit explained that “[i]n some limited circumstances, we have held that the state court's failure to hold an evidentiary hearing may render its fact-finding process unreasonable under § 2254(d)(2).”[3] 693 F.3d at 1147. However, “an evidentiary hearing is not required on issues that can be resolved by reference to the state court record.” Id. (citations omitted). In Cannedy, the Ninth Circuit explained what type of evidence could show prejudice under Strickland:

To determine whether counsel's errors prejudiced the outcome of the trial, we must compare the evidence that actually was presented to the jury with that which could have been presented had counsel acted appropriately. . . . Thus, we must first consider whether [the evidence] could have been admitted at trial. If the evidence could have been admitted, we must then ask whether there was a reasonable probability that it would have affected the outcome of the proceeding.

706 F.3d at 1163 (citations omitted).

         In a July 14, 2016 order, the undersigned set forth the Cannedy standard, concluding: “Thus, the evidentiary hearing in this matter is concerned with attorney deficiency and prejudice issues that cannot be resolved by reference to the state court record. Its scope includes state-admissible evidence ‘which would have been presented had counsel acted appropriately,' as well as any evidence of prejudice under Strickland.” (ECF No. 58 at 2-3.)

         At the hearing, petitioner had the burden of proving for each sub-claim that (1) Clark's performance was deficient, and (2) there is a reasonable probability that, but for Clark's unprofessional errors, the result would have been more favorable to petitioner as a criminal defendant. Strickland, 466 U.S. at 688.

         III. Factual Background

         To provide factual context for the claims, the undersigned summarizes the trial evidence against petitioner as set forth in the state court of appeal's decision, People v. O'Brien, 2008 WL 2955548 (Cal.App. 3d Dist. Aug. 4, 2008). (See ECF No. 16-1.)

         William Wellman testified for the prosecution against defendants petitioner and Tyler Dickson pursuant to a plea bargain. In February 2003, Wellman was twenty years old; Dickson was seventeen; and petitioner was sixteen. On the morning of February 26, 2003, Wellman and Dickson drove to petitioner's house and discussed a plan to steal money, marijuana, and dirt bikes from a home they believed would be empty. They then drove to the Big Horn Gun Shop. Petitioner had a shotgun with him, and Wellman, at petitioner's request, bought a box of shotgun shells, as he was over eighteen years old. (Id. at 2-4.)

         The trio then drove to Treasure Lane and entered the house, petitioner carrying the shotgun. Unexpectedly, Smelser emerged from a bedroom carrying a rifle and asked: “What are you doing in my house?” Wellman and Dickson ran back to the truck and heard a gunshot from inside the house. Petitioner came out of the house and said Smelser was dead. The three went back inside the house, where petitioner took a large amount of cash and Wellman took marijuana. They also took Smelser's rifle and threw it into a pond on the way to back to petitioner's house. (Id. at 4-7.)

         Testifying on his own behalf, Dickson corroborated Wellman's testimony as to petitioner's actions on the day of the murder. He could not recall what time they arrived at petitioner's house that morning. (Id. at 23-26, 35.)

         Petitioner's friend J.D. Petty testified that shortly before 8 a.m. on the morning of the murder, he loaned petitioner his shotgun, which was caked with mud from duck hunting. Around 11:30 a.m., petitioner called Petty and gave the shotgun back to him. It appeared to have been wiped down. Petitioner also gave Petty a box of shotgun shells from the Big Horn Gun Shop. One of the shells was missing, and petitioner told Petty he shot it into a hillside. (Id. at 11-12.)

         Petitioner's friend Chantell Michaud testified that she called petitioner at home at 10:30 on the morning of the murder, when he said he was going to get some marijuana, money, and dirt bikes that day. He said the place where he would get these things had roommates, but he did not think they would be home. He told Michaud he was leaving after their phone call. That evening, Michaud asked petitioner if everything had gone okay. Petitioner said, “No, it didn't go okay, ” and told her he didn't want to talk about it over the phone. Later that evening, Michaud saw a report of Smelser's murder on the television news. The next day, she asked petitioner if that was what went wrong the day before. In a pretrial interview, Michaud told police that he had answered her question affirmatively. (Id. at 13-14.)

         Petitioner's friend Richard Anschutz testified that he spoke to petitioner by phone at 11:34 a.m. on the day of the murder. Petitioner said he had $2, 500 and wanted to buy marijuana. When Anschutz asked petitioner where he got the money, petitioner replied that he didn't want to discuss it over the phone. (Id. at 14.) Petitioner's friend Richard Lacerte testified that he spoke to petitioner on the day of the murder, and during one such conversation, petitioner told Lacerte that he had “a couple grand” and was going to buy marijuana. (Id.) Another friend, Frankie Silici, testified that, prior to the murder, he had taken petitioner to the Treasure Lane house on two occasions to buy marijuana. (Id. at 12.)

         The time of the shooting was a key issue at trial. Before trial, petitioner's attorney James Clark believed that the prosecution would argue that the shooting took place between 11:30 a.m. and 1:00 p.m. Clark spent months developing evidence showing that petitioner had an alibi for this period. (F&Rs at 63, citing Lod. Doc. 11, Exhibits at 13-14.) At trial, Clark learned that Wellman had changed his story and would testify that the shooting took place before 11:30 a.m. In an April 2008 declaration, Clark explained that he decided not to seek a continuance of the trial to further investigate petitioner's alibi for the morning of the shooting. First, he did not think a continuance would be granted. Second, he already had some evidence that petitioner was home before 11:30 a.m. Clark believed he could “demonstrate to the jury that Wellman changed his story, not because it was the truth, but only to save his plea agreement. If the jury believed Wellman was lying, they would acquit O'Brien.” (Id. at 64, citing Lod. Doc. 11, Exhibits at 14-15.)

         IV. Ineffective Assistance Sub-Claims

         Per the Ninth Circuit's order of remand, an evidentiary hearing was held on Claim 6, subclaims (c), (d), (e), (f), (h), (i), (k), and (m) of O'Brien's federal habeas petition, alleging ineffective assistance of trial counsel.

         Petitioner presented five witnesses: defense attorney James Clark; gun shop employee Bob Gilmore; Edward Winslow, who worked with petitioner's mother at her auto shop; William Wellman, who pled to second degree murder and testified against petitioner; and petitioner's friends Chantelle Michaud and J.D. Petty. Following the hearing, the parties submitted post-hearing briefs. (ECF Nos. 83, 90 & 93.) The matter was submitted on September 20, 2017.

         In post-hearing briefing, respondent asserted, and petitioner did not dispute, that after the hearing petitioner abandoned the two subclaims concerning Michaud and Petty.[4] Also in post-hearing briefing, petitioner raises arguments that are outside the scope of the remand and/or procedurally barred.[5] The remanded and disputed subclaims are discussed below.[6]

         The Supreme Court has enunciated the standards for judging ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. To this end, the defendant must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690. The court must then determine, whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id. Second, a defendant must affirmatively prove prejudice. Id. at 693. Prejudice is found where “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id. See also United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985); United States v. Schaflander, 743 F.2d 714, 717-718 (9th Cir. 1984) (per curiam).

         As to ineffective assistance claims in the federal habeas context, the Supreme Court has instructed: “The standards created by Strickland and § 2254(d) are both ‘highly deferential,' . . . and when the two apply in tandem, review is ‘doubly' so[.] . . . . When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Richter, 562 U.S. at 105 (internal citations omitted).

         1. Bob Gilmore

         The first witness to testify was gun shop employee Bob Gilmore. His testimony went to Claim 6(f), in which petitioner alleged ineffectiveness because:

(f) Clark did not introduce evidence from Gilmore, the gun shop employee discussed in Hoagland's four-page report, that Wellman's observation of an employee placing handguns into the display case could only have occurred when the shop first opened at 10 a.m.

(Ptn. at 119.) The “Hoagland Report” documented a January 2, 2004 interview between Wellman, Wellman's attorney, Detective Hoagland, and District Attorney Joe Alexander. The report was provided to petitioner's defense attorney the day after trial started. (See F&Rs at 22, citing Lod. Doc. 11, Exhibits at 184-187.[7]) In relevant part, the report states:

Wellman was then asked if he recalled anything significant while inside the Big Horn Gunshop at that time of the morning [of the shooting]. Wellman said he recalled an employee behind the counter placing guns in the display case and a middle-aged customer talking to another employee about an upcoming hunting trip.

(Lod. Doc. 11, Exhibits at 185.)

         At trial, gun shop employee Carl Christofferson testified that, in 2003, he opened the store on weekday mornings at 10:00 a.m. He recalled selling a box of shotgun shells in February 2003 to a tall young man who was accompanied by two younger and shorter men. The transaction took place right after the store opened at 10:00 a.m., and then men were the “first ones in the door.” (ECF No. 16-1 at 18; 5 RT at 1099.) In his closing statement, prosecutor Alexander argued that Christofferon's testimony corroborated Wellman's testimony that Wellman, Dickson, and petitioner bought the shells used in the shooting at the Big Horn Gun Shop on the day of the murder. Alexander also argued that Christofferson's recollection of the timing was vague, “in the range” of 10:15 to 10:45. (7 RT 1662-1663.) Petitioner asserts that Clark should have called Gilmore to testify, placing Wellman at the gun shop at 10 a.m., when petitioner had an alibi.[8]

         At the evidentiary hearing, Gilmore testified that, in February 2003, he had worked at the Big Horn Gun Shop for about five years. He described the daily process of opening the store: Staff would arrive and unlock the building between 9:30 and 9:45 a.m. “We kept the handguns locked up, so next procedure was to unlock them from their storage, put them out in the display case.” This process took five minutes and occurred before the public was allowed inside. After placing money trays in the cash register, staff would open the front doors to the public at 10 a.m. At night, staff took the handguns out of the display cases in trays and locked them in a secure container. (EHRT 22-24.)

Q: So outside the procedure of putting the guns in the display case in the morning, were guns ever taken in and out of the display case at any other time during the day?
A: Absolutely. Just about every time we had a customer.
Q: So when you had customers, they would ask for a gun, gun would be taken out, you'd show it to them.
A: Yes, sir.
Q: And then it would be put back?
A: Yes, sir. . . . If they wanted to see one, they saw it. If they want to see another, put it back and get another out.
Q: There could be guns moving in and out of the display case at any time during the day?
A: Yes, sir.

(EHRT 26-27.) Gilmore further testified that, before the store opened, the guns were moved into the case in trays, but would be taken out for customers “generally one at a time.” (EHRT 28.) Gilmore confirmed that Clark never asked him to testify at trial. (EHRT 28.) At the evidentiary hearing, Wellman could not remember anything about guns being placed into the case at the gun shop. (EHRT 197-198.) Clark testified that, because he called Christofferson, who was working on the day of the shooting, as a witness, there was no need to also call Gilmore, who was not at the shop that day. (EHRT 146.)

         In post-hearing briefing, petitioner argues that Gilmore's testimony would have established that “Wellman entered the gun shop at precisely 10, when the handguns were being placed into the display case, ” thus establishing that Wellman “lied about O'Brien being at the gun shop.” (ECF No. 83 at 15-16.) However, Gilmore's testimony is consistent with Wellman seeing “an employee behind the counter placing guns in the display case and a middle-aged customer talking to another employee about an upcoming hunting trip” at some point later than 10 a.m. According to Gilmore, the guns already would have been in the display case when the shop opened to the public, but a gun could have been removed from, and returned to, the case at any time if requested by a customer.

         Because Gilmore's testimony does not establish what time Wellman arrived at the gun shop, Clark's failure to call him as a witness does not constitute ineffective assistance, nor has petitioner shown prejudice.

         2. Ned Winslow

         Petitioner argues that Clark should have called Edward “Ned” Winslow as a witness, as Winslow would have testified that petitioner called his mother's auto shop at approximately 10:49 a.m. on the day of the murder. (ECF No. 83 at 18.) Winslow's testimony relates to Claim 6(c), in which petitioner alleges that

(c) Clark conducted no additional investigation and presented no additional alibi evidence after learning that Wellman would testify that the shooting took place earlier than ...

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