Opinion
No. C-01-2849 VRW (PR)
August 22, 2002
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
On October 1, 1996, a jury convicted petitioner in the Superior Court of the State of California in and for the County of Alameda of one count of assault with a firearm (Cal. Pen. Code § 245(a)(2); Count 1), one count of assault with a deadly weapon (Cal. Pen. Code § 245(a)(1); Count 3), and one count of the lesser-included-offense of simple assault (§ 240; Count 4). The trial court found that petitioner suffered a prior conviction within the meaning of sections 667, subdivision (a) and 1170.12, subdivision (c)(1). On February 10, 1997, he was sentenced to 17 years in state prison.
Petitioner appealed, but the California Court of Appeal, First District affirmed the judgment of conviction in an unpublished opinion and the Supreme Court of California denied review. Petitioner filed three habeas petitions in the California Supreme Court. The California Supreme Court denied all three.
Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on July 25, 2001, the court found that the petition, liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has
FACTUAL BACKGROUND
The California Court of Appeal summarized the facts underlying the charged offenses as follows:
On March 21, 1996, cousins Jonathan Poloai, Rickey Auelua and Samoa Lefiti visited a park on Berry Avenue in Hayward with Auelua's young daughter. At the park, they saw Crystal Guerrero, with whom they were acquainted, and a group of six or seven of her friends who were drinking alcohol. Auelua became upset with the drinking and loud swearing of Guerrero and her friends in the presence of children in the park, so he deposited their alcohol in a dumpster. Two of the men in Guerrero's group threatened to fight with Auelua but when he agreed to fight them, "everybody left." Before departing, Guerrero was "really upset" with Auelua, and told him that he "messed up"
About five minutes later, Guerrero approached Poloai near the playground area of the park and sat on his lap. Guerrero acted as though she was sexually interested in Poloai, but he thought she was [petitioner's] girlfriend and rejected her advances. Guerrero took offense, an argument between them ensued, they exchanged insults, and as Poloai left, Guerrero yelled that she was "going to get" petitioner] to "come over here."
The following day, Poloai, Lefiti and Auelua returned to the park. While Auelua and Lefiti were p laying basketball in the park, [petitioner] arrived in his red Mustang with a passenger known to them only as "Terry." Seconds later, Guerrero also ran over from apartments nearby to join [petitioner]. [Petitioner], after walking from his parked Mustang to the basketball court with Guerrero, inquired in an and voice about Poloai's whereabouts. Auelua told [petitioner] that Poloai "went to park the car." Just then, Poloai walked toward them from the apartments across the street. As he did, Auelua pointed him out to [petitioner], whereupon [petitioner] grabbed a rifle from Guerrero and began to chase Poloai with it.
When Poloai saw [petitioner] advance upon him with the gun, he began to run for the p ark exit. Upon observing [petitioner]'s car, however, he decides to appropriate it to effectuate a faster escape. Poloai pushed Terry aside, jumped in the Mustang, and "took off." Just as Poloai pulled away in the car, [petitioner] fired the rifle "at him." He fired two or three more shots as Poloai drove down Berry Avenue. After Poloai disappeared from view in the car, [petitioner] threw down the rifle and began yelling at Guerrero.
Auelua and Lefiti imprudently taunted [petitioner] with comments that he was a "lousy shooter" and had lost his car to Poloai, which prompted [petitioner] to retrieve the rifle and point it at them. Auelua and Lefiti fled, with [petitioner] in pursuit. As he ran away, Auelua saw [petitioner] pause, point the rifle at him, and fire three shots, none of which struck him or Lefiti.
Meanwhile, Poloai returned to the park in the Mustang to assist his cousins. He saw [petitioner] with the rifle and heard a hot as Auelua and Lefiti ran toward him. Lefiti jumped in the car with Poloai; Auelua "just kept on running straight" out of the park. As Poloai drove away with Lefiti, he looked back and observed [petitioner] drop to his knees, aim the rifle at them, and fire one more shot. None of the shots struck anyone or the Mustang.
When Poloai reached a Taco Bell on Donald Street away from the park, he was enraged, so he intentionally drove [petitioner's] Mustang into a fire hydrant to damage it. He then drove the car to the end of the street and "left it there."
Hayward Police Officer Jeff Lutzginger responded to a report of shots fired in the park at 7:30 that evening to search for "a red Mustang" associated with the shooting incident. The vehicle, which was registered to [petitioner], was found on Donald Avenue, a short distance from the par. The right front wheel and quarter panel of the Mustang had incurred damage, and the car had to be towed away. A search of the park in the area of the reported shooting did not uncover a gun, rounds of ammunition, bullet holes or expended shell casings.
Later that evening, [petitioner] reported to the police that his Mustang had been "carjacked." When interviewed by the police. [petitioner] stated that he parked his car on Berry Avenue and walked into the park to meet his girlfriend Guerrero. His friend Terry remained with the car. While speaking with Guerrero, he looked back and saw a "Middle Eastern male" punch Terry in the face and drive away in the Mustang. [Petitioner] denied that he was armed with a gun in the park or had heard any shots, as witnesses had reported to the police. As the questioning proceeded, he became increasingly uncooperative. By the end of the interview [petitioner] proclaimed that he "would take care of the matter on his own."
On March 25, 1996, at around 2:00 in the afternoon, Poloai drove Auelua to apartments at 550 Berry Avenue. Poloai remained in the car parked in the lot of the apartment complex, while Auelua went inside his apartment to collect some of his belongings. Frances Lopez, who lived in the apartment with Auelua, joined Poloai in the car as they waited for Auelua to return.
As Poloai waited and chatted with Lopez, he spotted Guerrero in the passenger seat of a car that twice passed by on Whitman Street. Soon thereafter, [petitioner] appeared on the opposite side of a cyclone fence, with "two or three other guys" behind him, one of whom, his brother John Affleje, was holding a h gun. Poloai stepped out of his car and stood next to the open driver's side door; Lopez stayed in the passenger seat He greeted [petitioner], who then asked, "Why did you disrespect my girl, and why did you mess up my car?" [Petitioner] sounded and He made an aborted attempt to scale the fence, then threw a piece of broken cement or a brick over the fence at Poloai. The brick missed Poloai by six or eight inches, but struck and cracked his car windshield.
Poloai immediately started the car engine and told Lopez to "run." Lopez fled upstairs to her a partment. Poloai then saw John Affleje produce the gun and heard [petitioner] repeatedly yell, "Shoot him." As Poloai backed out of the parking lot driveway, [petitioner] jumped over the fence and grabbed the gun from his brother. Poloai drove onto Berry Avenue, looked in his side-view mirror, and observed [petitioner] behind him, "running and shooting" at him. Poloai thought [petitioner] fired at him "four to five times," but all of the shots missed.
Later that day, Poloai reported both shooting incidents to the police. Poloai testified that he did not immediately report the first shooting because "it was a misunderstanding," probably caused by "some kind of wild story" told to [petitioner] by Guerrero. The police subsequently questioned [petitioner] about the confrontation with Poloai on March 25. [Petitioner] admitted that he threw a brick at Poloai during the course of their argument; but denied that he fired any shots at him.
In his testimony at trial, [petitioner] essentially repeated his previous statements to the police. [Petitioner] testified that on March 22, he arrived at the park with his son Jeff and friend Teny Leshe, left his car running, got out and contacted Guerrero. He turned around while speaking with Guerrero to see someone hit Terry from behind, then jump in his car and drive away. [Petitioner] ran across the park in pursuit, carrying a stick in his hand. The car was driven in circles or "donuts," then left the park. He immediately called "911" and reported that his "car had just been carjacked on Beny Avenue." The car was returned to him by the police that night, but it "was not drivable."
[Petitioner] subsequently learned that Poloai was the person who had taken his car. On March 25, [petitioner] fortuitously spotted Poloai standing next to his car in the parking lot of the apartment complex at Whitman and Berry. [Petitioner] confronted Poloai, and asked him, "Why did you take my car?" Poloai became "aggressive" and reached behind his back, so [petitioner] picked up a brick an hurled it over the fence at Poloai's car. He demed that he fired any shots at Poloai on either occasion.
People v Afllege No A07747, slip op at 1-5 (Cal Ct App. Mar 13, 1998) (Resp't Ex6).
DISCUSSION
A. Standard of Review
This court may entertain a petition for a 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 writ 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." Id § 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 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.
In our circuit, a state court decision may be disturbed as involving an "unreasonable application" of clearly established federal law only if the federal habeas court reviewing the state court decision is left with a "definite and firm conviction" that an error was committed — in other words, "that clear error occurred." Van Tran v. Lindsey. 212 F.3d 1143, 1153-54 (9th Cir 2000).
Where the state court does not articulate a rationale for its decision, a federal court must conduct "an independent review of the record" to determine whether the state court "clearly erred" in its application of controlling federal law. Delgado v Lewis 223 F.3d 976, 982 (9th Cir 2000).
B. Claims
Petitioner raises four cognizable claims for relief under § 2254: (1) trial court gave erroneous jury instructions on assault with a deadly weapon; (2) trial court erroneously denied petitioner a hearing on his motion to substitute counsel; (3) petitioner received ineffective assistance of counsel; and (4) petitioner's sentence violates the Federal Constitution.
1. Jury Instruction Claim
According to petitioner, the state trial court gave an erroneous instruction on assault with a deadly weapon, particularly in response to a question from the jury regarding Count 2. In Count 2, petitioner was charged with assault upon Auelua. Petitioner contends that the requisite intent for assault must be accompanied by a present ability to commit a battery. In the case of gun use, petitioner claims the weapon must be pointed at a person within shooting range. Thus, petitioner complains the instruction did not address whether his act of shooting at a car could also be deemed an act of shooting at a person nearby.
a. Standard of Review for Jury Instruction Claim
A challenge to a jury instructional error solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Id at 72. "[I]t must be established not merely that the instruction is undesirable, erroneous or even `universally condemned,' but that it violated some [constitutional] right." Donnelly v DeChristoforo, 416 U.S. 637, 643 (1974). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Estelle, 502 US at 72. In other words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. United States v. Frady. 456 U.S. 152, 169 (1982). Accordingly, the court must determine whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. Estelle, 502 US at 72.
A determination that there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution establishes only that an error has occurred. Calderon v Coleman, 525 U.S. 141, 146 (1998). If an error is found, the court also must determine that the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). State prisoners seeking federal habeas relief are not entitled to habeas relief unless they can establish that the instructional error resulted in "actual prejudice." Coleman v Calderon. 210 F.3d 1047, 1051 (9th Cir 2000).
b. Analysis
The California Court of Appeal found no error in the trial court's instructions to the jury. The court specifically found:
We find no defect in the challenged assault instructions for several reasons. First, the trial court gave standard jury instructions patterned after our high court's most recent pronouncement on the law of assault in People v. Colantuono (1994) 7 Cal.4th 206. The court in Colantuono declared: "[T]he question of intent for assault is determined by the character of the defendant's willful conduct considered in conjunction with its direct and probable consequences. If one commits an act that by its nature will likely result in physical force on another, the particular intention of committing a battery is thereby subsumed." (Id, at p. 217). "[F]or assault, as with any general intent crime, the nature of the defendant's present willful conduct alone suffices to establish the necessary mental state without inquiry as to an intent to cause further consequences. ([People v. Hood (1969) 1 Cal.3d 444,] 456-457; cf. People v. Griggs (1989) 216 Cal.App.3d 734, 742 [ 265 Cal.Rptr. 53] . . .)" (Id, at pp. 217-218, fn. and italics omitted.)
We cannot fault the trial court for giving instructions taken verbatim from our high court's most recent pronouncement on the law of assault. We admit some difficulty in reconciling the intent standard articulated in Colantuono of commission of an act that by its nature would "probably and directly result in injury," with the established premise that the state of mind of criminal negligence cannot serve as the measure of culpability for criminal assault. (See People v. Smith (1997) 57 Cal.App.4th 1470, 1479-1480; People v. Lara (1996) 44 Cal.App.4th 102, 107.) Nevertheless, the court in Colantuono decree a no proof of an additional intent to inflict a particular harm is required. (7 Cal.4th at p. 214; see also In re Jerry R. (1994) 29 CaLApp.4th 1432, 144.) The trial court was constrained to follow the directive of Colantuono, and so must we. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Bullock (1994) 26 Cal.App.4th 985, 990)
As to the response to the jury's request for "clarification," the court properly declined to directly answer the question, which called for a finding of fact to be made by the jury alone. (People V. Colantuono, supra, 7 Cal.4th at p. 221.) The court was not required to supplement the standard assault instruction with any further definition of the necessary intent. "In responding to questions from a jury during deliberations, the trial judge has authority to provide clarifying instructions if appropriate. (People v. Thompkins (1987) 195 Cal.App.3d 244 [ 240 Cal.Rptr. 516].) However, `[t]his does not mean the court must always elaborate on the standard instructions. . . . Indeed, comments diverging from the standard are often risky.' (People v. Beardslee (1991) 53 Cal.3d 68, 97 [ 279 Cal.Rptr. 276, 806 P.2d 1311].)" (People v. Guilmette (1991) 1 Cal.App.4th 1534, 1542.) Our high court has, in fact, warned "trial courts not to embellish on the standard jury instructions for assault. . . ." (People v. Guilmette, supra, at p. 1542.) No additional description of appellant's present ability to inflict harm on the occupants of the car was necessary.
Finally, as the Attorney General points out, the only possible offense to which the jury's question related was Count 2, the charge of an assault upon Auelua, and appellant was not convicted of that offense. Thus even if error occurred in the trial court's response, it was not prejudicial to him. (People v. Ballard (1988) 203 Cal.App.3d 311, 321.)
People v Affleje. No A07747, slip op at 6-9 (Cal Ct App. Mar 13, 1998) (Resp't Ex 6) (foot note omitted).
The California Court of Appeal did not err in rejecting petitioner's jury instruction claim. The trial court correctly followed the California Supreme Court's pronouncement of California law and read the corresponding model instructions to the jury. There is no showing whatsoever that the alleged instructional error resulted in a conviction that violates due process. See Estella 502 U.S. 62. Nor is there any showing that the alleged error had a substantial and injurious impact on the jury's verdict. See Brecht. 507 U.S. 619; Coleman, 210 F.3d 1047. As the California Court of Appeal correctly pointed out, the only count the alleged error could have affected was Count 2 (assault on Auelua) and petitioner was not convicted of that count.
The jury never reached a verdict with regard to the assault on Auelua and a mistrial was declared.
Petitioner is not entitled to federal habeas relief on this claim because it cannot be said, with definite and firm conviction, that the California Court of Appeal's rejection of his claim was "clearly erroneous." Van Tran, 212 F.3d at 1159.
2. Hearing on Motion for Substitution of Counsel
Petitioner claims that he was unlawfully denied a hearing on his motion for substitution of counsel under Marsden. He alleges that he filed a Marsden motion after the verdict was rendered, but before sentencing, and that no hearing was ever held on the motion.
A Marsden motion is a request by the defendant that his appointed counsel be discharged or that new counsel be substituted in. People v Marsdea 2 Cal.3d 118 (1970). What is required is "at least some clear indication by defendant that he wants [counsel discharged or] a substitute attorney." People v Lucky, 45 Cal.3d 259, 281 (1988).
a. Standard of Review for Motion To Substitute Counsel Claim
Regardless of whether a state court failed to conduct a hearing under Marsden or denied the motion, the inquiry in federal habeas review is whether petitioner's Sixth Amendment right to counsel was violated. Cf Shell v Witeck, 218 F.3d 1017, 1024-25 (9th Cir 2000) (en banc) (overruling earlier circuit precedent that had stated that habeas court's inquiry was whether the state court's denial of the motion was an abuse of discretion). That is, the habeas court must consider whether the trial court's denial of or failure to rule on the motion "actually violated [petitioner's] constitutional rights in that the conflict between [petitioner] and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Id at 1026.
b. Analysis
The California Court of Appeal rejected petitioner's claim on the ground that he waived his right to assert Marsden error and, in any event, he established no prejudice. The court specifically noted:
. . . [Petitioner] has run afoul of the rule of appellate review that failure to secure a ruling and thus grant the trial court an opportunity to correct error constitutes waiver of an issue on appeal. (People V. Ramos (1997) 15 Cal.4th 1133, 1171; People v. Morris (1991) 53 Cal.3d 152, 189-190.) Appellant waived or abandoned any right to assert Marsden error in this court by his failure to request a ruling on his motion for substitution of counsel or to raise the issue again after filing the motion, and his silent acceptance of defense counsel's assistance for the remainder of the proceedings. (People v. Skaggs (1996) 44 Cal.App.4th 1, 8-9).
Further, the lack of a Marsden hearing has not been established as prejudicial to appellant. This court recently observed that "Marsden does not establish a rule of per se reversible error. (People v. Chavez (1980) 26 Cal.3d 334, 348-349 [ 161 Cal.Rptr. 762, 605 P.2d 401].)" (People v. Washington (1994) 27 Cal.App.4th 940, 944.)
Appellant has made no showing either that his Marsden motion would have been granted had it been heard, or that a more favorable result would have been achieved had the motion in fact been granted. The failure to rule on the motion did not affect appellant's trial, as it was made only after he had been convicted. The basis or the postconviction Marsden motion could have been only that his attorney acted incompetently at trial or in filing the motion for new trial (see generally, People v. Smith, supra, Cal.4th at p. 693) or, possibly, that appellant believed that counsel would be unable to represent him properly at sentencing. We have reviewed the record before us, and conclude that no grounds to support appellant's vague assertions of ineffective assistance of counsel exist. We are convinced that appellant's trial attorney provided him with vigorous and competent representation. Although the evidence against appellant was overwhelming, counsel was able to obtain a jury deadlock and declaration of mistral on one count, and a guilty verdict of a lesser included offense on another. Nothing in the record remotely suggests that substitute counsel would have obtained for appellant a new trial or more lenient sentence. We therefore conclude upon examination of counsel's efforts under governing standards of incompetence (People v. Castillo (1997) 16 Cal.4th 1009, 1015), that no more favorable result for appellant would have occurred had the Marsden motion been entertained. (People v. Washington, supra, 27 Cal.App.4th at p. 944.)
People v Affleje No A07747, slip op at 11-12 (Cal Ct App. Mar 13, 1998) (Resp't Ex 6) (foot note omitted).
The California Court of Appeal did not err in rejecting petitioner's claim. Petitioner makes no showing that the court's failure to grant him a hearing on his motion "actually violated [petitioner's] constitutional rights in that the conflict between [petitioner] and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Shell, 218 F.3d at 1026. Nor has petitioner shown, as the California Court of Appeal correctly noted, that his motion would have been granted if a hearing had been held. Cf Wilson v Henry 185 F.3d 996, 990 (To show prejudice under Strickland from failure to file a motion, [petitioner] must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him).
Petitioner is not entitled to federal habeas relief on this claim because it cannot be said, with firm and definite conviction, that the California Court of Appeal's rejection of his claim was "clearly erroneous." Van Tran 212 F.3d at 1159.
3. Ineffective Assistance of Counsel
Petitioner's third and fifth claims are that he received ineffective assistance of counsel because (1) counsel failed to call witnesses relevant to his defense; (2) counsel failed to bifurcate the trial on the prior conviction; (3) counsel failed to investigate the backgrounds of prosecution witnesses; and (4) counsel failed to present an adequate defense of carjacking.
a. Standard of Review for Ineffective Assistance of Counsel Claims
In order to prevail on an ineffective assistance of counsel claim, petitioner must establish two things. 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. 668, 687-88 (1984). 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. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. Id.
Judicial scrutiny of counsel's performance must be highly deferential. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and the defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Id at 689.
Petitioner has the burden of "showing" that counsel's performance was deficient. Toomey v Bunnell. 898 F.2d 741, 743 (9thCir 1990). Similarly, he must "affirmatively prove prejudice." Strickland. 466 US at 693. Conclusory allegations that counsel was ineffective do not warrant relief. Jones v Gomez, 66 F.3d 199, 205 (9thCir 1995).
b. Analysis
i. Failure To Call Witnesses
Petitioner first contends that counsel should have used the testimony of Terry Leshe, a friend and associate who was present during the incident at the park on March 22, 1996. Leshe's declaration states that at no time did he see petitioner possess or discharge a firearm on that date.
The record shows Leshe was on the prosecution witness list. As a result, his identity and presence were known by defense counsel. Leshe was an associate of petitioner and an alleged local gang leader. His character and credibility were questionable. Counsel's decision by counsel not to include Leslie as a witness appears to have been a tactical one. Petitioner's mere insistence that counsel should have called Leshe is not enough to overcome the presumption that counsel's decision not to do so might be considered sound trial strategy. Strickland. 466 US at 689.
Nor has petitioner has not established that there was prejudice as a result of Leshe not testifying. Five witnesses in the park at the time of the shooting testified they saw petitioner possess and fire a gun on March 22, 1996. Petitioner has not demonstrated that there is a reasonable probability that the result of the proceedings would have been different with Leshe's testimony. Id at 694.
Petitioner also argues that counsel failed to call other witnesses allegedly beneficial to his case. He refers to three witnesses who he claims would have corroborated his defense that he did not carry or shoot a firearm. Specifically, petitioner argues that counsel ignored the declarations of John Affleje (petitioner's brother), Jesse Taitague, and Michelle Affleje. All three declarations relate to the events of March 25, 1996, where petitioner was convicted of assault with a deadly weapon (a brick) and misdemeanor simple assault. John Affleje wrote and signed a declaration that stated he was with petitioner on that date and never saw petitioner with a firearm. He further states that he would have testified to those facts if the prosecution had not threatened to file charges against him. Jesse Taitague similarly wrote a declaration that claimed he witnessed the events of March 25, 1996 and never saw petitioner in possession of a firearm. Also, Michelle Aflleje's declaration states that she was in court on March 25, 1996 and witnessed Jesse Taitague inform the defense counsel he was willing to testify as to his declaration.
Each of these declarations relates only to whether petitioner used a firearm during the assault on March 25, 1996 and not whether petitioner actually participated in the assault. While petitioner was charged with one count of assault with a deadly weapon (a brick) and one count of assault with a firearm in connection with the assault on March 25, 1996, he was only convicted of the lesser-included offense of simple assault. Because the declarations only relate to whether petitioner carried a gun on March 25, 1996, there is no reasonable probability that the declarations would have affected the outcome of the verdict. Petitioner has not shown prejudice from counsel's decision not to utilize any of the three potential witnesses at trial. Strickland, 466 US at 694.
ii. Failure To Bifurcate Trial on Prior Conviction
Petitioner's claim that counsel failed to bifurcate the trial as to his prior conviction is without merit. The record makes it clear that the trial court's determination that petitioner's prior felony constituted a "strike" was made in a bifurcated proceeding. See Ex 1 at 322. in. Failure To Investigate the Backgrounds of Prosecution Witnesses
iii. Failure To Investigate the Backgrounds of Protection Witnesses
Petitioner claims counsel failed to investigate the backgrounds of prosecution witnesses. But petitioner fails to show specifically what counsel might have found or how the lack of such information prejudiced his trial. Petitioner is not entitled to habeas relief on their conclusory claim. See Stricklan, 466 US at 693; Jones v Gomez, 66 F.3d 199, 205 (9th Cir 1995).
iv. Failure To Present an Adequate Defense of Carjacking
Petitioner claims counsel failed to present an adequate defense of carjacking. However, the record makes clear that counsel did present a such a defense. Petitioner, in fact, testified in support of the carjacking defense, reciting the statements he gave to police. See Ex 6 at 5.
Petitioner does not point to anything in particular that was defective about the defense, besides the fact that it was unsuccessful in acquitting him of all charges. This is not enough. Petitioner has not met his burden of showing that, but for counsel's deficiency, the outcome of the trial would have been different. Strickland, 466 US at 694. Petitioner is not entitled to federal habeas relief on this claim.
4. Sentence
Petitioner claims the use of his prior conviction to double the base term of his current offense and to enhance his sentence by five years violates double jeopardy. This claim is without merit. It is well-established that an enhanced punishment imposed for a later offense "`is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes,' but instead as `a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.'" Witte v United States, 515 U.S. 389, 400 (1995) (quoting Gryger v Burke. 334 U.S. 728, 732 (1948)). Accordingly, the use of prior convictions to enhance sentences for subsequent convictions does not violate the Double Jeopardy Clause. See Spencer v Texas. 385 U.S. 554, 560 (1967) (upholding use of prior convictions to enhance sentences for subsequent convictions even if in a sense defendant must relitigate in sentencing proceeding conduct for which he was already tried). Any such challenge is wholly without merit. See Jackson v Nelson 435 F.2d 553, 553 (9th Cir 1971) (dismissing double jeopardy challenge to recidivist statute as meritless).
Petitioner also argues that his prior conviction is invalid because, had he known about the potential application of California's Three Strikes Law, he would not have plead guilty to his prior conviction. This argument is without merit. The possibility that petitioner would be convicted of another offense in the future and would receive an enhanced sentence based on an instant conviction is not a direct consequence of a guilty plea and, therefore, petitioner did not have to be advised of this prior to pleading guilty. See United States v Brownlie 915 F.2d 527, 528 (9th Cir 1990).
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
The clerk shall enter judgment in favor of respondent and close the file.
SO ORDERED.
JUDGMENT IN A CIVIL CASE
This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS SO ORDERED AND ADJUDGED that judgment is entered in favor of respondent.