Opinion
No. C 01-2871 CRB (PR)
May 17, 2002
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Alameda of transporting methamphetamine, possessing methamphetamine for sale, and possessing marijuana for sale based on his arrest and seizure of drugs occurring on June 23, 1997. He was also convicted of possessing methamphetamine for sale arising from the seizure of drugs from his house on December 18, 1997. On April 24, 1998, he was sentenced to six years and eight months in state prison.
Petitioner appealed and sought a writ of habeas corpus from the California Court of Appeal, claiming that his trial counsel had been constitutionally ineffective. On November 24, 1999, the state court of appeal affirmed the conviction and denied the request for habeas relief. On March 15, 2000, the Supreme Court of California denied review.
Petitioner then filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per orders filed on June 12, 2000 and May 8, 2001, a magistrate judge of this court ordered the petition served on respondent and ordered him to show cause why a writ of habeas corpus should not be granted. Respondent declined to proceed before a magistrate judge and the matter was reassigned to the undersigned. After an order reinstating the magistrate judge's order to show cause, respondent filed an answer. Petitioner did not file a traverse.
FACTUAL BACKGROUND
The California Court of Appeal summarized the facts of the case as follows;
. Prosecution Case
On June 23, 1997, Alameda Police Officer Michael Abreu arrested Herman Ebarb after finding methamphetamine during a probation search of his home. Ebarb told Officer Abreu that his main supplier was "Dan," and, based on Ebarb's description, Abreu suspected the supplier was Bryant, which Ebarb confirmed. Abreu released Ebarb after no charges were filed against him, and Abreu asked Ebarb to telephone Bryant and set up a drug buy. Ebarb called Bryant and asked for a "one-inch drive," which was their code for one ounce of methamphetamine. Bryant said he did not have a one-inch drive, but did have a "half-inch drive." Ebarb understood this to mean a one-half ounce quantity of methamphetamine, and he said he would take it. They agreed to meet at a car wash.
Officer Ron Jones, who was watching Bryant's home, followed Bryant when he came out of his house and drove toward the car wash. Jones lost track of Bryant, but Officers Brian Cary and Rod Rummel saw Bryant stop in front of the car wash. Cary and Rummel pulled their police car parallel to Bryant's car, got out, and yelled, "Police Department." Bryant quickly accelerated away while Cary and Rummel pursued him with their police car lights and siren on. Officer Arturo Fuentes saw Bryant running from the other officers and tried to block Bryant's escape by placing his unmarked truck in Bryant's path. Bryant swerved around Fuentes, struck a parked car, and sped away at high speed. He eventually stopped about a quarter o a mile away from the car wash and surrendered. A search of Bryant's car unearthed nothing, but Sergeant Shawn Fernandez found a plastic baggie containing a half-ounce of methamphetamine lying in the gutter about 40 feet from the parked car that Bryant struck. A man digging a ditch about 10 feet away denied that the baggie belonged to him.
The police conducted a search of Bryant's home that day, and five men, including Mark Spillers, Richard Fletcher, and John Fowler, were present in the house. The police searched Bryant's bedroom, which was locked with a dead bolt, and found almost a pound of marijuana in the closet packaged in two plastic bags, an Ohaus triple bean scale in a toolbox on the bed, numerous "pay-owe" sheets on the bed, a box of plastic bags in a dresser, over $2,400 in cash in a dresser drawer and in a jacket hanging in the closet, a box of .38 caliber ammunition, a pager, and almost five grams of methamphetamine on the dresser in a metal cup. Officer Jones, who saw both the methamphetamine that was found in Bryant's room and that which was found near the parked car that Bryant struck, testified that the methamphetamine in both instances was packaged similarly, and both had the same "uncommon" reddish color and unusual odor. Jones testified that he had seen methamphetamine exhibiting such a color only twice out of the 200-300 times he had previously seen methamphetamine. Officers found a small amount of methamphetamine in Fletcher's bedroom and in Spillers's bedroom, and plastic bags and a large scale in Spillers's bedroom. The methamphetamine in Spillers's room was a different color from that found in the street and in Bryant's room.
On December 18, 1997, police officers pursuant to a search warrant, broke open Bryant's locked bedroom door and found him in bed. Officer Fernandez found, inside a sock in a robe hanging on the bedroom door, two bags of methamphetamine weighing 6.35 ounces and 6.83 ounces, and $500 in $20 bills. Police Officers also discovered $120 and a pager in a dresser drawer, $155 in Bryant's wallet, a tablet of paper with "pay-owe" sheets, several address books, and plastic baby bottle bags. Police officers found glass drug pipes, a pager and a scale in Spiller's room, and seized $357 from Spillers. Officers discovered methamphetamine outside Spillers's bedroom window.
. Defense Case
Several witnesses testified that one of Bryant's housemates, Fletcher; was remodeling his bedroom during June 1997, and Bryant allowed him to steep in his room. Bryant either slept in a music "control" room in the house or spent the might at his girlfriend, Lori Melena's, house. Because of the construction work, Bryant also allowed his other housemates, Fowler and Spillers, to keep things in his room for safekeeping. Fowler, Fletcher, and Spillers had a key to Bryant's room. Bryant kept track of rent and other payments by listing them on a notebook. Bryant often received deliveries of construction materials and paid for them in cash.
Melena and Bryant's three housemates testified that Bryant never used alcohol, tobacco, or drugs, and Bryant testified that he did not sell drugs and did not know about or possess the drugs found by the police. Bryant admitted that he had been convicted in 1993 for possessing marijuana for sale, but that he pleaded no contest in order to prevent his father, who was a codefendant, from going to prison. He denied possessing any marijuana during that incident.
Bryant testified that he knew Ebarb and that Ebarb had a reputation for dishonesty. He sold tools and a toolbox to Ebarb, who paid Bryant half the money he owed and promised to pay the rest in a few weeks. According to Bryant, Ebarb called him on June 23, 1997, and told Bryant that he needed a "one-inch drive." Bryant understood this to mean that a tool was missing from the toolbox, and asked Ebarb, "[Y]ou mean a one inch socket with a half-inch drive?" and Ebarb said yes. Ebarb said he had the rest of Bryant's money and they agreed to meet at the car wash.
Bryant told Fowler that he had to deliver some tools to Ebarb and left the house with a red toolbox. Spillers testified that he saw Bryant carrying part of a socket set with him when he left. After Bryant left, Fowler saw Fletcher come out of Bryant's bedroom with a silver cup and he offered Fowler some methamphetamine from t e cup. Spillers also went into Bryant's room that day in order to weigh marijuana from a big bag of marijuana he kept in Bryant's closet, using the Ohaus scale that he left in a toolbox in Bryant's room weeks before. Spillers used small plastic bags from Bryant's room to package the marijuana.
Bryant drove to the car wash and stopped in front, but did not see anyone. Bryant heard a loud voice outside his car and saw the hood of a black car in his rear-view mirror. Believing that the person outside was someone who had attacked him months before and threatened him the previous week, Bryant drove off. As Bryant pulled away, he swerved to avoid a truck that pulled in front of him and struck a parked car. After he passed the truck he saw police lights and sirens, and stopped.
On December 17, 1998, Spillers and Fowler decided to smoke some marijuana, so Spillers took a dark sock out of the pocket of his jacket and removed a baggie of marijuana from the sock. The sock also contained $500 and methamphetamine. Spillers then went into Bryant's bedroom, and hung his jacket on a coat rack, near a robe. Spillers testified that he admitted to violating his probation in municipal court based on his arrest on December 18, 1997, and that he stated during the court proceedings that nothing in the house belonged to him.
Bryant denied that Officer Fernandez was in his bedroom on December 18, 1997, when the search warrant was served. According to Bryant, an unnamed officer found the sock containing drugs and money in Spillers's jacker, not in Bryant's robe.
. Prosecution Rebuttal
Officer Marin testified that he searched Bryant's home in 1992, entered his bedroom, found Bryant asleep in bed with a woman, and discovered a small amount of marijuana on the floor near the bed, a small amount of marijuana on the floor of the closet and in some clothes hanging in in the closet, and about a quarter-pound of marijuana on the floor of the closet. Mail, documents, and personal items belonging to Bryant were in the bedroom, but officers found none belonging to his father. Bryant's father was in a van parked in front of the house, and the van also contained marijuana and methamphetamine.People v. Bryant, Nos. A083421 A087613, slip op. 2-6 (Cal.Ct.App. Nov. 24, 1999) (footnotes omitted) (Resp't Ex. G).
DISCUSSION
A. Standard of Review
This court may grant 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 `reasonable 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 the 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).
B. Claims
Petitioner claims that he received ineffective assistance of counsel because trial counsel made several blunders while cross-examining prosecution witnesses. Specifically, petitioner claims that trial counsel improperly: (1) elicited testimony that allowed the jury to hear about petitioner's prior drug conviction; (2) elicited testimony that petitioner had the name of a known drug dealer in his address book; and (3) elicited testimony that petitioner was considered "armed and dangerous."
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 v. Washington, 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 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 (9th Cir. 1990). Similarly, he must "affirmatively prove prejudice." Strickland, 466 U.S. at 693. Conclusory allegations that counsel was ineffective do not warrant relief Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995).
1. Evidence of prior drug conviction
Before trial, petitioner admitted his 1993 conviction for possession of marijuana for sale. The court explained that the jury would not be informed of the prior conviction, but warned defense counsel that the prior conviction could be used for impeachment purposes should petitioner testify.
During defense counsel's cross-examination of Officer Abreu, the following exchange took place:
Q. In fact, you didn't make any purchases of narcotics from Mr. Bryant in this case, did you?
A. Correct.
Q. As a matter of fact, nobody in the Alameda Police Department has ever bought narcotics from Mr. Bryant, have they?
A. I don't know.
Q. You don't know?
A. I don't know if that's true or not.
Q. But you're not aware of any?
A. I'm not sure that I can answer the question without getting into a prior case.
Q. Okay. A prior case against one of your officers for possession?
A. No, against Mr. Bryant for possession for sales.
Q. Now which had nothing to do with methamphetamine, did it?
A. Want to talk about the case? I believe there was methamphetamine found that day.
Q. I don't want to talk about that case
Rep. Tr. at 132-33.
The California Court of Appeal rejected petitioner's claim that defense counsel acted incompetently by eliciting evidence of petitioner's prior conviction. The court noted that the obvious import of counsel's questions to Abreu was to show that the Alameda Police Department had no first-hand knowledge that petitioner was selling methamphetamine, and that its officers based their information on the word of a known drug user. Counsel's ultimate strategy was to paint Ebarb as a liar and petitioner as an upstanding, sober, law-abiding citizen caught with his housemates' drugs. People v. Bryant, Nos. A083421 A087613, slip op. at 8-9 (Cal.Ct.App. Nov. 24, 1999) (Resp't Ex. G).
The state court specifically reasoned:
Counsel did not ask Abreu about Bryant's 1993 conviction, but when Abreu, unbidden, started to mention that case, counsel had two choices: to move to a different area of testimony, or to show that Bryant was not convicted of selling methamphetamine in the prior case. Counsel chose the second route, obviously anticipating that information related to the earlier case would arise during Bryant's testimony, either as impeachment in cross-examination or in his direct examination. Counsel also may not have wished the jury to think that the defense was hiding anything by abruptly ending the line of questioning he was pursuing with Officer Abreu. Counsel's choice was therefore reasonable. Officer Abreu was intent on mentioning the prior case, and the jury may have speculated that Bryant was previously convicted of methamphetamine sales based on Abreu's open-ended statement that the previous case involved Bryant and possession for sales. "Bryant's counsel evidently saw an opportunity to explain that the previous conviction did not involve methamphetamine and to blunt the effect of Abreu's statement. Counsel therefore sought, by asking Abreu to confirm that the prior conviction had' nothing to do with methamphetamine," clarification that Bryant did not deal with methamphetamine. When Abreu gave the nonresponsive answer that "there was methamphetamine found that day," counsel again had the choice of pursuing the same line of questioning with a hostile witness who was clearly uncooperative, or ending the questioning there in order to place no more emphasis on Abreu's insinuation that Bryant's prior conviction involved methamphetamine. Counsel reasonably chose the latter course, relying instead on later testimony about the 1993 conviction to dispel any notion that Bryant was previously convicted of methamphetamine sales. Counsel's questioning of Abreu was objectively reasonable, and therefore did not constitute ineffective assistance of counsel.Id. at 9 (citing Strickland, 466 U.S. at 689). The California Court of Appeal did not err in concluding that defense counsel's questioning of Officer Abreu was objectively reasonable. Counsel questioned Abreu about the lack of any direct evidence that a police officer ever bought drugs from petitioner in an attempt to highlight the prosecution's reliance on Ebarb, a known drug user, to prove that petitioner sold drugs. The fact that, in hindsight, counsel's attempt to attack the prosecution's circumstantial evidence elicited some information regarding petitioner's prior conviction does not show that counsel's questioning (and handling of the situation) was unreasonable under the circumstances. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998) (the relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable).
It cannot be said, with a definite and firm conviction, that the state court's application of Strickland to petitioner's claim was "clearly erroneous." Weighall v. Middle, 215 F.3d 1058, 1063 (9th Cir. 2000) (citing Van Tran v. Lindsey, 212 F.3d 1143, 1152-54 (9th Cir. 2000)).
2. Evidence that petitioner associated with a drug dealer
Later on during the continued cross-examination of Officer Abreu, defense counsel asked Abreu about several address books found in petitioner's bedroom on December 18, 1997. Counsel asked, "What do they indicate? [¶] A. They frequently contain names and telephone numbers for customers and/or suppliers." Counsel further asked if Abreu recognized any names in the books, and Abreu said yes. Rep. Tr. at 150-51.
On redirect examination, the prosecutor asked Abreu whether he recognized any specific name in petitioner's telephone books, and Abreu clarified that he recognized the name "Lori" and that she was know to deal in narcotics. Id. at 190-91. Defense counsel then asked on recross-examination, "Now who's Lori?" Abreu responded that it was Lori Munoz, a dealer in Alameda. Counsel asked, "Her phone number is in that book? [¶] A. I'm not sure of that. [¶] Q. Where did you see her name? [¶] A. There is a Lori in the phone book that I believe had a phone number, came back to a 415 area code where I know her residence to be." Id. at 194-95.
The California Court of Appeal rejected petitioner's claim that defense counsel acted unreasonably by eliciting testimony that petitioner's address books contained the name of a known drug dealer. The state court reasoned:
A reasonable explanation for counsel's actions is that he was trying to establish that no drug-dealers' names were in Bryant's [address] books. Counsel also tried to establish that Abreu was assuming that the "Lori" in the book was a drug-dealer, based on the area code where he thought Lori Munoz lived. This thin evidence that Bryant associated with a drug dealer is later contrasted with evidence that Bryant's girl friend's name is Lori. This later evidence would both explain why his [address] book contained the name Lori, and cast doubt on Abreu's credibility. Counsel did not act unreasonably.People v. Bryant, Nos. A083421 A087613, slip op. at 11 (Cal.Ct.App. Nov. 24, 1999) (Resp't Ex. G).
The California Court of Appeal did not err in concluding that counsel did not act unreasonably. Counsel questioned Abreu about the address books in an attempt to establish that there were no drug-dealers' names in the books. After Abreu unexpectedly stated that he recognized the name "Lori" as that of a known drug dealer, counsel made clear during recross that there was no evidence to support Abreu's belief Lori was petitioner's girlfriend's name. Again, petitioner does not show that counsel's questioning (and handling of the situation) was unreasonable under the circumstances. See Babbitt, 151 F.3d at 1173 (relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable). His mere insistence that counsel should have proceeded differently is not enough to overcome the strong presumption "that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (citation and internal quotation marks omitted).
It cannot be said, with a definite and firm conviction, that the state court's application of Strickland to petitioner's claim was "clearly erroneous." Weighall. 215 F.3d at 1063 (citing Van Tran, 212 F.3d at 1152-54).
3. Evidence that petitioner was armed and dangerous
During cross-examination of Officer Cary, defense counsel asked about the normal procedures of a traffic stop. Cary testified that it was normal procedure to pull behind a vehicle because it was more dangerous to pull alongside the car. Counsel then asked if "there was any reason to believe" that Bryant was dangerous, and Cary replied, "I believe we had been advised he had been known to have weapons." Rep. Tr. at 395. Counsel asked that the court strike the answer, but the court refused. Counsel then asked if Cary had any information on the day of the stop that Bryant might be aimed, and Cary replied, "Just that he had weapons in the past."Id.
The California Court of Appeal rejected petitioner's claim that defense counsel acted unreasonably by eliciting testimony from Officer Cary that he believed petitioner was aimed and dangerous when he stopped petitioner's car. The state court reasoned that a plausible reason for counsel eliciting this testimony was to establish that Cary was not believable: "If [Cary] thought that Bryant was aimed and dangerous, then it would be very dangerous to pull alongside Bryant, as he had testified. Thus, counsel shed doubt on his testimony that he pulled alongside Bryant." People v. Bryant, slip op. at 12. "We find no incompetence." Id.
The California Court of Appeal did not err in concluding that petitioner did not act incompetently. Defense counsel's questioning of Officer Cary supported the defense theory that petitioner had an innocent reason for fleeing from the police and established that Cary was not believable. According to Cary, he and Officer Rummel pulled alongside petitioner when they first attempted to stop him. Petitioner testified that the police car pulled up behind him, and he could only see the black hood in the rearview mirror. Counsel's cross examination established that Cary's normal procedure was to pull behind a vehicle because it was dangerous to pull alongside a suspect vehicle, especially if there was information that the suspect may be armed. Cary's testimony was impeached successfully. Petitioner's insistence that counsel should have acted differently is not enough to overcome the presumption "that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (citation and internal quotation marks omitted).
It cannot be said, with a definite and firm conviction, that the state court's application of Strickland to petitioner's claim was "clearly erroneous." Weighall, 215 F.3d at 1063 (citing Van Tran, 212 F.3d at 1152-54).
4. Prejudice
Even if petitioner had established that counsel's challenged questioning during cross-examination constituted deficient performance, he would not be entitled to relief because he has not demonstrated that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland, 466 U.S. at 694. In other words, he has not demonstrated that any deficient performance prejudiced the defense. See id. at 687.
The evidence showed that after speaking with Ebarb, petitioner drove to the car wash and, when confronted by police, sped away. The police found one-half of an ounce of methamphetamine along petitioner's route, exactly the amount Ebarb had agreed to buy. Officer Jones found the same unusually colored methamphetamine in petitioner's locked bedroom, along with one pound of marijuana, plastic baggies, a scale and a significant amount of cash. Six months later, the police found more methamphetamine, along with plastic baggies and a substantial amount of cash, in petitioner's locked bedroom. Petitioner's explanations for all of the circumstantial evidence against him, e.g., that the drugs found in his room belonged to other people and that the methamphetamine found on the street after the pursuit was planted by the police or belonged to someone else, were a "long shot," even without the alleged errors of defense counsel.
In view of the overwhelming evidence of guilt and relative minor nature of the alleged errors, it cannot be said that it is reasonably probable that the jury would have reached a different verdict had defense counsel not committed the alleged errors. Cf. Strickland, 466 U.S. at 694. The California Court of Appeal did not clearly err in concluding that "no prejudice resulted from counsel's allegedly incompetent acts, considered individually or together." People v. Bryant, slip op. at 14. Petitioner is not entitled to federal habeas relief on his claims of ineffective assistance of counsel. See Weighall, 215 F.3d at 1063.
Petitioner's suggestion that defense counsel failed to adequately investigate and prepare a proper defense strategy does not compel a different result. Faced with overwhelming circumstantial evidence of guilt, counsel had little choice but to argue that petitioner had no knowledge of the drugs seized by the police. To bolster the credibility of the defense, counsel also argued that petitioner had no involvement with drugs. Although ultimately unsuccessful, it cannot be said that the strategy was unreasonable under the circumstances. Cf. United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990) (noting that courts should not second-guess counsel's strategic decision to present or to forego a particular theory of defense when such decision was reasonable under the circumstances).
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.The clerk shall enter judgment in of respondent and close the file.