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Myles v. Montgomery

United States District Court, E.D. California

November 21, 2019

ORLINDO ANTONIO MYLES, Petitioner,
v.
W.L. MONTGOMERY, Respondent.

          FINDINGS AND RECOMMENDATIONS

          GREGORY G. HOLLOWS, UNITED STATES MAGISTRATE JUDGE

         Introduction and Summary

         Petitioner, a state prisoner proceeding through counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c).

         After a lengthy exhaustion, and ultimately unproductive, hiatus, petitioner filed a Second Amended Petition ("SAC"). ECF No. 38. This is one of the few cases where understanding what are the precise issues in the case could be more difficult than their resolution.

         No one contests that petitioner's claim that the jury was erroneously instructed with an accomplice instruction is an issue in this petition. The controversy surrounding identification of the issues concerns the ineffective assistance of counsel claim: whether there is a singular ineffective assistance claim-that petitioner's trial counsel was ineffective for failing to ask for excusal of petitioner's jury when the co-defendant (who had a separate jury) was testifying-or whether there is another issue concerning counsel's not requesting severance of the trials in the first place. The undersigned finds that no issue in this case exists with respect to a distinct claim of ineffective assistance of counsel regarding failure to sever petitioner's trial from his co-defendant.

         However, with respect to the issues actually brought herein and exhausted, the undersigned finds that the ineffective assistance claim of-failing to object regarding the non-exclusion of petitioner's separate jury when the co-defendant testified-should be denied. Likewise, petitioner's claim that an accomplice jury instruction violated due process should be denied as well.

         Procedural History and Issues

         The general background to this case is provided by the California Court of Appeal, Third Appellate District, People v. Myles. No. C066505, 2013 WL 4613810, at *1 (Cal.Ct.App. Aug. 29, 2013):

Defendants Orlindo Antonio Myles and Kristopher Speight were tried together with separate juries. A jury convicted Myles of first degree residential burglary; first degree robbery; assault with intent to commit rape, oral copulation, sexual penetration or sexual penetration in concert; sexual penetration; and sexual penetration in concert. The jury also found true allegations that Myles committed the sexual offenses during a first degree burglary and that he tied or bound the victim in the commission of the sexual offenses, qualifying him for harsher punishment under the one strike law.
A different jury convicted Speight of first degree residential burglary; first degree robbery; sexual penetration; and sexual penetration in concert. The jury also found true allegations that Speight committed the sexual offenses during a first degree burglary and that he tied or bound the victim in the commission of the sexual offenses, qualifying him for harsher punishment under the one strike law.
The trial court sentenced Myles to a determinate term of seven years four months in prison plus a consecutive indeterminate term of 25 years to life. It sentenced Speight to a determinate term of three years in prison plus a consecutive indeterminate term of 25 years to life.

         Because of the existence of the spurious ineffectiveness of counsel issue, the procedural history needs to be set forth in detail. During the state court proceedings, petitioner made a motion to sever his trial from that of his co-defendant, or in the alternative, to empanel separate juries. ECF No. 46-8 at 263, et seq.[1] The motion was made because the defense anticipated that extra-judicial statements of the co-defendant would be introduced. In accordance with petitioner's alternative request, the trial court ordered separate juries to be empaneled. ECF No. 46-5 at 29. An anticipatory motion to exclude extra-judicial statements was also made. ECF No. 46-8 at 276. At no time did petitioner's counsel express dissatisfaction that the alternative separate jury paradigm was chosen by the trial court rather than a complete severance, i.e., two separate trials entirely. It was also made clear at the inception of the trial that the co-defendant would try to incriminate petitioner (and vice-versa). ECF No. 46-5 at 28.

         At the time petitioner's co-defendant was to testify, no objection was made by petitioner's counsel to his testimony taking place before both juries, nor did counsel otherwise ask to have petitioner's jury excused while the co-defendant's testimony took place. See ECF No. 46-6 at 399-403.

         On appeal, one claim of ineffective assistance counsel was made along with a jury instruction issue regarding the "finding" of the co-defendant as an accomplice (discussed below). The sole basis of the claim concerned counsel's ineffectiveness for failing to ask that petitioner's jury be excused during the co-defendant's testimony. ECF No. 46-1 at 2, 18-31. This precise claim was repeated in the petition for review before the California Supreme Court. ECF No. 46-4 at 2, 13-24.

         The first petition filed in federal court again raised only the non-excusal of the jury ineffectiveness. ECF No. 1 at 4-5. So too, the first amended petition. The presently operative second amended petition continued with the same issue, ECF Nos. 12 at 4-5; 38 at 2, 18-24, but in arguing this sole issue, petitioner's counsel posited that the state courts had missed the "severance" issue. According to petitioner the "fact" that trials may be severed when multiple defendants have antagonistic defenses "proves" that an antagonistic co-defendant's testimony is inadmissible as to the other defendant. Hence, it was all the more reason to ask that petitioner's jury be excused in this case. Petitioner argued that the Court of Appeal had missed this basis in coming to its conclusion that petitioner had never explained why the co-defendant's testimony was inadmissible as to petitioner which would (and should) have triggered a request to excuse petitioner's jury. In the answer, respondent argued that this "new" severance issue was not exhausted, but also opposed the claim as a direct assertion of ineffectiveness because trial counsel had not sought to have the trials of petitioner and his co-defendant severed.

         The undersigned does not fault respondent for being confused by petitioner's argument in thinking that petitioner was for the first time raising an issue that counsel was ineffective for not having sought severance of petitioner's trial from that of his co-defendant from the get-go, or even midway through trial (if that is possible). Use of the term "severance" was somewhat confusing at first glance.[2] However, in fairness and in reality, petitioner was not raising a separate ground for ineffectiveness based on failure to ask that the trial be severed, which in fact was a request made by petitioner's trial counsel in pretrial; counsel was merely using severance cases in which to establish a reason why the co-defendant's testimony was "inadmissible" thereby "refuting" the Court of Appeal finding that petitioner had never established a basis for claiming that petitioner's jury had to be excused during the "inadmissible" testimony of the co-defendant. Even petitioner agrees: "Petitioner has argued throughout the pendency of his case that he was denied his right to effective assistance of counsel because trial counsel should have objected to his jury hearing Speight's testimony. The mere mention of the concept of antagonistic defenses [i.e., a sometimes basis for ordering severed trials] does not change the substance of his claim." ECF No. 54-1 at 6.

         Therefore, the undersigned finds that only one ineffective assistance of counsel claim has been raised herein: that trial counsel's asserted failure to ask that petitioner's jury be excused during the co-defendant's testimony constituted ineffective assistance of counsel. Whether petitioner's arguments are meritorious remains to be seen. This one ineffectiveness issue discussed above along with the jury instruction issue regarding the finding of the co-defendant as an "accomplice" are the two issues presented in this habeas petition.

         Discussion

         Ineffective Assistance of Counsel

         No party disputes that review of the petition here is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), . The AEDPA standards for ineffective assistance of counsel were succinctly set forth in the United States Supreme Court case Cullen v. Pinholster:

There is no dispute that the clearly established federal law here is Strickland v. Washington. In Strickland, this Court made clear that "the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation ... [but] simply to ensure that criminal defendants receive a fair trial." 466 U.S., at 689, 104 S.Ct. 2052. Thus, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id., at 686, 104 S.Ct. 2052 (emphasis added). The Court acknowledged that "[t]here are countless ways to provide effective assistance in any given case," and that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Id., at 689, 104 S.Ct. 2052.
Recognizing the "tempt[ation] for a defendant to second-guess counsel's assistance after conviction or adverse sentence," ibid., the Court established that counsel should be "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," id., at 690, 104 S.Ct. 2052. To overcome that presumption, a defendant must show that counsel failed to act "reasonably] considering all the circumstances." Id., at 688, 104 S.Ct. 2052. The Court cautioned that "[t]he availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges." Id., at 690, 104 S.Ct. 2052.
The Court also required that defendants prove prejudice. Id., at 691-692, 104 S.Ct. 2052. "The defendant must show 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, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. That requires a "substantial," not just "conceivable," ...

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