Opinion
No.C 98-4138 VRW (PR)
June 25, 2001
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a judgment of conviction from the Superior Court of the State of California in and for the County of Contra Costa. Per order filed on March 1, 1999. the court found that the petition for a writ of habeas corpus stated cognizable claims for relief 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, who is no longer in custody. has filed a traverse. For the reasons set forth below, the petition is denied.
STATEMENT
. . . [Petitioner] devised and implemented a massive real estate fraud scheme. In some instances, [petitioner] would sell deeds of trust to unsuspecting third parties and then forge their signatures on later deeds of reconveyance. In other instances, [petitioner] would sell property he did not own. The authorities originally estimated that [petitioner's] various schemes had resulted in a financial loss of over $1.5 million. Later estimates placed the loss in excess of $11 million.
[Petitioner] was charged . . . in December 1981 [with nine counts of forgery, eight counts of offering forged documents for recording, three counts of grand theft enhanced by financial loss in excess of $25,000, and three counts of grand the theft enhanced by financial loss in excess of $100,000]. The matter proceeded to a jury trial; however, on September 20, 1982, the ninth day of trial, [petitioner] failed to appear. The court ruled [petitioner's] absence was voluntary, and proceeded with the trial in his absence. The jury then convicted [petitioner] on all counts.
[Petitioner] remained a fugitive from the law for the next I I years. He fled to the East Coast where, after obtaining a false identity, he secured a series of jobs in the hotel and restaurant industry. [Petitioner] was finally captured in August 1993 when the FBI, acting on an anonymous tip, arrested him in Jackson, Tennessee.
[Petitioner] was returned to Contra Costa County where the court sentenced him to 10 years in prison and imposed a $10,000 restitution fine . . .
People v Morrell, No A063968, slip op at 1-2 (Cal Ct App. June 19, 1995) (Resp't Ex 7).
On June 19, 1995, the California Court of Appeal struck the restitution fine and modified the trial court's award of presentence credits; however, it affirmed the judgment of conviction in all other respects. The Supreme Court of California denied review.
Several months later, petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. It was denied on February 1, 1996 and the Supreme Court of California again denied review.
On April 23, 1996. petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in this court. Morrell v Powell, No C 96-1488 VRW. The court initially issued an order to show cause, but, on July 23, 1997. dismissed the petition without prejudice because it contained unexhausted claims.
Petitioner returned to state court and filed a petition for a writ of habeas corpus in the Supreme Court of California. On October 28, 1998. the state high court denied the petition for "lack of diligence."
On October 30, 1998. petitioner filed the instant petition. The court again found that it stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent moved to dismiss the petition as untimely under 28 U.S.C. § 2244(d). On May 15, 2000, after extensive briefing, the motion was denied. Respondent now has filed an answer to the order to show cause and petitioner has filed a traverse.
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, 120 S Ct 1495, 1523 (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. "[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 1522.
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 1521. 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). cert denied, 121 S Ct 340 (2000).
B. Claims
Petitioner raises five cognizable claims for relief under 28 U.S.C. § 2254: (1) ineffective assistance of counsel (2) prosecutorial misconduct; (3) sentencing error; (4) multiple punishment and (5) ineffective assistance of counsel on appeal.
An additional claim of actual innocence based on newly-discovered evidence was dismissed because a free-standing claim of actual innocence is not a basis for federal habeas relief under § 2254. March 1, 1999 Order at 2 (citing Herrera v Collins, 506 U.S. 390, 400 (1993); Coley v Gonzalez, 55 F.3d 1385, 1387 (9th Cir 1995)).
1. Ineffective assistance of counsel
Petitioner claims he received ineffective assistance of counsel because counsel: (a) "refused to call to testify or even interview prelinimarily, approximately ninety (90) witnesses . . . known to possess potentially excuplpartory [sic] evidence;" (b) "did no pie-trial discovery or investigation" so he did not retain a "support team of investigators and expert witnesses;" (c) "completed the defense . . . in less than two hours;" (d) elicited prejudicial testimony from witness Cowin who claimed the attorney-client privilege; (e) failed to offer lesser-included offense instructions; and (f) failed to object to the admission of inaccurate, perjured and prejudicial evidence. In support of his allegations, petitioner attaches certain evidence to his petition which he argues exonerates him of guilt on several of the counts and should have been obtained by defense counsel. Petitioner's claims of ineffectiveness were summarily denied by the California Court of Appeal on collateral review.
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, 687-14 (1984). Second, he must establish that lie 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. Id at 689; Sanders v Ratelle, 21 F.3d 1446, 1456 (9th Cir 1994). The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. Babbitt v Calderon, 151 F.3d 1170, 1173 (9th Cir 1998).
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 US at 693. Conclusory allegations that counsel was ineffective do not warrant relief. Jones v Gomez, 66 F.3d 199, 205 (9th Cir 1995).
Respondent contends that petitioner's claims of ineffectiveness fail because petitioner has not met his burden of showing deficient performance by his counsel or prejudice to his right to a fair trial. Respondent specifically contends that petitioner cannot prove his claims because, due to his fleeing his trial and remaining a fugitive for over 11 years. there is no trial transcript or settled statement of the trial proceedings under which to assess petitioner's claims of trial error, including his claims of ineffectiveness of trial counsel.
Shortly after petitioner filed his notice of appeal in 1993, it became apparent that a reporter's transcript of his trial could not be prepared. The trial had ended in 1982 and, in 1991, the court reporter, as permitted by the version of California Government Code section 69955 then applicable and acting pursuant to a court order, destroyed the trial notes. People v Morrell, No A063968, slip op at 2 (Cal Ct App. June 19, 1995). The California Court of Appeal directed the trial court to conduct whatever hearings might be necessary to determine if a satisfactory trial record could be reconstructed. The trial court then held a series of hearings where it evaluated the documents which had been preserved and received information from both prosecutor and defense counsel at petitioner's trial. "Unfortunately, despite these efforts. the court concluded that a settled statement could not be prepared." Id at 3.
The destruction order was signed on May 10, 1991, by Presiding Judge Richard L. Patsey. It states, "Pursuant to the provisions of Section 69955 of the Government Code, and good cause appearing therefor, it is hereby ordered that Linda S. MacFarlane, Supervising Court Reporter of the Superior Court of Contra Costa County. is authorized and directed to destroy any and all reporters' notes that have been on file for more than five years prior to the date of this order." People v Morrell, slip op at 2 n2.
The California Court of Appeal found that petitioner "is solely responsible for the predicament with which he is faced." Id at 4. He does not have the benefit of a trial transcript or settled statement of the trial proceedings because he "fled during his trial and was a fugitive for over 11 years." Id. Unfortunately for petitioner, his "predicament" makes it very difficult for him to overcome the presumption of regularity that attaches to his state conviction on federal collateral review. See, e.g., Park v Raley, 506 U.S. 20, 29 (1992); United States v Mulloy, 3 F.3d 1337, 1339-40 (9th Cir. 1993). He must "affirmatively prove" deficient performance and "prejudice." Strickland, 466 US at 693.
Petitioner first claims that counsel was ineffective because he failed to interview and call numerous witnesses who possessed exculpatory evidence. The claim fails because petitioner does not show what the witnesses would have testified to and how that testimony would have undermined confidence in the outcome of the case. See United States v Berry, 814 F.2d 1406, 1409 (9th Cir 1987); see also Bragg v Galaza, 242 F.3d 1082, 1088-89 (9th Cir 2001) (mere speculation that witness might have given helpful information if interviewed is not enough to establish ineffective assistance). Petitioner does allege that Joseph Zamora and Donald Miladinovich were not interviewed or called despite advising counsel that "they held evidence contrary to the charges" and naming two individuals as the perpetrators. However. without a record of the trial proceedings to point to what the witnesses who were called testified to and what arguments counsel made, petitioner's allegation falls short of establishing ineffective assistance of counsel. Petitioner's claim is purely speculative. Counsel may well have decided not to interview Zamora and Miladinovich because he already was aware of their account. See. e.g., Eggleston v United States, 798 F.2d 374, 376 (9th Cir 1986) (claim of failure to interview witness cannot establish ineffective assistance when person s account is otherwise fairly known to defense counsel). Or, for that matter, counsel may have had other witnesses testify to a similar account. We do not know. Petitioner has not "affirmatively prove[d]" that counsel was deficient by failing to interview or call any witness, or, importantly, that counsel's failure to do so "prejudice[d]" him. Strickland, 466 US at 693.
Second, petitioner claims that counsel was ineffective because he did no pre-trial discovery or investigation and failed to hire the necessary investigators and expert witnesses to present an adequate defense. Petitioner attaches to his petition, among other things, a copy of a canceled check on which he claims his signature was forged, and a copy of a check which he claims shows that funds from prosecution witness Walter Menetry were paid to Meir Ziv rather than petitioner. Petitioner claims that this evidence should have been discovered by defense counsel and would have shown his innocence. Petitioner's claim fails because, even if we assume deficient performance by counsel, petitioner does not show that if the evidence he puts forth had been presented there is a reasonable probability that the trial outcome would have been different. See id at 694. Again, without a record of the trial proceedings. petitioner cannot show how the prosecution's case and verdict would have been undermined if the evidence had been introduced. For all we know, counsel presented similar evidence to the jury or the evidence was irrelevant to the jury's finding of guilt on any of the counts. Petitioner has not "affirmatively prove[d] prejudice. Strickland, 466 US at 693.
Petitioner's conclusory allegations that defense counsel should have hired handwriting, real estate and escrow experts also fail. "Speculation about what an expert could have said is not enough to establish prejudice." Grisby v Blodgett, 130 F.3d 365, 373 (9th Cir 1997). Nor is mere insistence that hiring experts would have produced a better defense. After all, expert testimony is necessary only when lay persons are unable to make an informed judgment without the benefit of such testimony. See Caro v Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999).
Third, petitioner claims that counsel was ineffective because he called only 3 witnesses and completed the defense in less than 2 hours. Petitioner's claims is without merit. He fled before counsel presented his closing argument to the jury and makes no showing whatsoever that counsel's defense strategy was deficient and that a different strategy would have produced a different outcome. See id at 687; see also Jones v Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (conslusory allegations that counsel was ineffective do not warrant relief).
Fourth, petitioner claims that counsel was ineffective for eliciting prejudicial testimony from witness William Cowin, who invoked the attorney-client privilege on the witness stand. The clerk's transcript shows that after petitioner fled his trial, William Cowin was called by the defense. Clerk's Tr at (Resp't Ex 1). Cowin testified before the jury; however, he invoked the attorney-client privilege as to all conversations between himself and petitioner, and the trial court ordered that all of his testimony be stricken. Id. Petitioner's claim fails because he does not. and cannot, "affirmatively prove prejudice" — Cowin's testimony was stricken by the trial court. Strickland, 466 US at 693.
Fifth, petitioner claims that counsel was ineffective in failing to request lesser-included offense instructions. Petitioner's claim fails because he does not specifically allege what instructions counsel should have requested. and. importantly, does not "affirmatively prove" that he was prejudiced by any such failure. See id; see also James v Borg, 24 F.3d 20, 26 (9th Cir 1994) (allegations of ineffective assistance of counsel not supported by specific facts do not warrant habeas relief). Petitioner cannot even identify what instructions were actually requested by either side.
Finally, petitioner claims that counsel was ineffective because he failed to object to the admission of inaccurate. perjured and prejudicial testimony. In order to establish prejudice under Strickland from failure to make a motion, petitioner must show that (1) had his counsel made 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. See Wilson v Henry, 185 F.3d 986, 990 (9th Cir 1999). Petitioner makes no such showing.
In sum, petitioner's claims of ineffective assistance of counsel fail because he does not "affirmatively prove" deficient performance and "prejudice." Strickland, 466 US at 693. His contention that prejudice should be presumed under United States v Cronic, 466 U.S. 648 (1984), is without merit. In Cronic, the Supreme Court held that where counsel's conduct is egregiously prejudicial, no showing that there is a reasonable probability that the outcome would have been different is required and prejudice and ineffective assistance may be presumed. Cronic, 466 US at 658-62. These will be those rare cases where counsel "entirely fail[ed] to subject the prosecutions case to meaningful adversarial testing." Id at 659. There is no evidence whatsoever in the record that thus is one of those rare cases. See, e.g., United States v Swanson, 943 F.2d 1070 (9th Cir 1991) (prejudice presumed where counsel conceded in argument to jury that there was no reasonable doubt regarding key factual issue in dispute); Javor v United States, 724 F.2d 831 (9th Cir 1984) (where counsel sleeps through substantial portion of trial no prejudice need be shown).
But cf Dows v Wood, 211 F.3d 480, 485-86 (9th Cir 2000) (counsel suffering from Alzheimer's disease during trial not prejudicial per se).
The fugitive disentitlement doctrine also supports rejecting petitioner's claims. "The fugitive disentitlement doctrine limits access to courts in the United States by a fugitive who has fled a criminal conviction in a court in the United States. The doctrine is bug-established in the federal and state courts, trial and appellate." In re Prevot, 59 F.3d 556, 562 (6th Cir. 1995). It permits a district court to dismiss a petition for a writ of habeas corpus if the petitioner is a fugitive from justice. See id at 564 (citing cases). The doctrine may even apply where, as here, the petitioner was a former fugitive.
The Supreme Court has indicated that a former fugitive may be disentitled if his flight has a "connection" to current proceedings. Ortega-Rodriguez v United States, 507 U.S. 234, 249 (1993). A lengthy escape. for example. might justify dismissal of a fugitive's action. even after recapture. because the government may be prejudiced in locating witnesses and presenting evidence if a retrial were required. or because it may somehow make meaningful review of the former fugitive's conviction impossible or otherwise disrupt the judicial process. See id at 249-50. Put simply, a former fugitives action may be dismissed if granting relief is likely to result in an undue burden on the government or if the former fugitive's flight will result in significant interference with the operation of the judicial process. See United States v Rosales, 13 F.3d 1461, 1462-63 (11th Cir 1994). It does not matter that the former fugitive fled from the custody of another sovereign. In re Prevot, 59 F.3d at 566.
Here. petitioner's flight from his state trial and decision to remain a fugitive for over 11 years resulted in the records of his trial being lawfully destroyed. The absence of a trial transcript or settled statement of the trial proceedings due to petitioner's flight seriously interferes with this court's collateral review of petitioner's trial error claims nearly 20 years after petitioner's state trial was held. Petitioner cannot point to the trial proceedings to prove prejudice from any trial error, the government cannot fairly dispute any assertions of prejudice, and the court cannot properly assess any such claims. Petitioner's flight should disentitle him from litigating any claims of trial error in this court. It would be "unconscionable" that petitioner's "deliberate attempt to evade his day of reckoning. successful for a time, should be allowed to impose additional burdens upon the judiciary to accommodate claims that should be forfeited by flight." United States v Sudthisa-Ard, 17 F.3d 1205, 1208-09 (9th Cir. 1994) (internal quotation marks and citation omitted).
Not surprisingly, the California Court of Appeal also declined to grant petitioner relief under California Penal Code section 1181(9), which permits an appellate court to grant a new trial when it is not possible to have a transcript of the trial being appealed. because, as the court put it. petitioner "is solely responsible for the predicament with which he is faced." People v Morrell. slip op at 4.
In view of petitioner's failure to prove deficient performance and prejudice, and the effect of his flight on these proceedings. it cannot be said, "applying a firm conviction standard," that the California Court of Appeal's denial of petitioner's ineffectiveness claims was "clearly erroneous." Van Tran v Lindsey, 212 F.3d 1143, 1159 (9th Cir). cert denied, 121 S Ct 340 (2000). Petitioner is not entitled to federal habeas relief on his claims of ineffective assistance of trial counsel.
2. Prosecutorial misconduct
Petitioner claims that the prosecutor committed misconduct at trial by allowing perjured and inaccurate testimony. and by knowingly withholding exculpatory evidence. In support of his allegations, petitioner offers certain exhibits attached to his petition as evidence of the prosecutor's misconduct, including typewritten notes allegedly representing the prosecutor's arguments. and handwritten charts of the transactions at issue. He also points to various canceled checks, which he first argued should have been discovered by counsel and now argues were improperly withheld by the prosecutor. The Supreme Court of California denied petitioner's claims for "lack of diligence." In re Morrell, No S068827 slip op at 1 (Cal Oct 28, 1998) (Resp't Ex 20).
The standard of review for prosecutorial misconduct in federal habeas cases is "the narrow one of due process, and not the broad exercise of supervisory power." Donnelly v DeChiristoforo, 416 U.S. 637, 642 (1974). "The relevant question is whether the prosecutor's comments [or actions] so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v Wainwright, 477 U.S. 168, 181 (1986). This standard allows a federal court to grant relief when the state-court trial was fundamentally unfair but avoids interfering in state-court proceedings when errors fall short of constitutional magnitude. Drayden v White, 239 F.3d 704, 713 (9th Cir 2000).
In order to obtain relief, a habeas petitioner also must show that any constitutional error had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v Abrahamson, 507 U.S. 619, 637 (1993). In other words, petitioner must show that any constitutional error resulting from prosecutorial misconduct resulted in actual prejudice. See Bains v Cambra, 204 F.3d 964, 977 (9th Cir 2000) (Brecht standard applies uniformly in all federal habeas corpus cases under § 2254).
Petitioner's allegations of prosecutorial misconduct fail for essentially the same reasons that his allegations of ineffective assistance of trial counsel fail. There is no evidence that the charts petitioner presents were introduced at trial, that they contained inaccurate dates. or that the prosecutor knowingly mischaracterized the facts. Nor is there any evidence (including the proffered notes of the prosecutor) that the prosecutor was knowingly suborning false testimony to support the charges. Even if we assume as true petitioner's assertions that the prosecutor "employed trickery to confuse the judge and jury into accepting" the dates on the charts as fact and knowingly introduced false into accepting" the dates on the charts as fact and knowingly introduced false testimony, petitioner does not show that this resulted in actual prejudice, i.e., that it had a substantial and injurious effect or influence in determining the jury's verdict. Brecht, 507 US at 637. The absence of a trial record as a result of petitioner's flight precludes him from proving prejudice.
Similarly, petitioner's claim that the prosecutor improperly withheld certain evidence fails because petitioner does not, and cannot, show that: (1) the evidence at issue is favorable. either because it is exculpatory or because it is impeaching; (2) the evidence was suppressed by the State; and (3) prejudice ensued. Strickler v Greene, 527 U.S. 263, 281-82 (1999). None of the allegedly withheld evidence at issue is of such clear exculpatory nature that it can be said, even without a record of the trial proceedings. to put the whole case in such a different light as to undermine confidence in the verdict. See Kyles v Whitley, 514 U.S. 419, 435 (1995).
Petitioner is not entitled to federal habeas relief on his claims of prosecutorial misconduct. He has not proved them and. as with his other trial error claims, is disentitled as a result of his flight. See supra at pp 11-12.
The court agrees with respondent that petitioner's prosecutorial misconduct claims are also procedurally barred. The Supreme Court of California denied them for lack of diligence, an adequate state bar which must be presumed independent when imposed dy the state high court on October 30, 1998. Cf La Crosse v Kernan, 244 F.3d 702, 706-07 (9th Cir 2001) (California court's invocation of untimeliness bar cannot be basis for procedural default in federal court as to state habeas petitions denied before August 3, 1998, when the Supreme Court of California announced that it would no longer consider federal law when deciding whether claims are procedurally defaulted).
3. Sentencing error
On October 4, 1982, the jury found true allegations that three of petitioner's grand theft convictions were subject to enhancement under California Penal Code section 12022.6(a), and that three were subject to enhancement under section 12022.6(b). At that time, section 12022.6, subdivisions (a) and (b), respectively, permitted a one-year enhancement when the property taken exceeded $25,000, and a two-year enhancement when the property taken exceeded $100,000. By the time petitioner was sentenced in 1993, however, the California Legislature had amended section 12022.6. Effective June 30, 1992. the amount in subdivision (a) was increased from $25,000 to $50,000, and the amount in subdivision (b) was increased from $100,000 to $150,000.
Petitioner argued on direct appeal that he should benefit from these statutory changes in that the enhancements for taking property in excess of $100,000 must be reduced to enhancements for taking property in excess of $50,000, and the enhancements for taking in excess of $25,000 must be stricken entirely. The effect of these changes, he contended, would be to reduce his sentence by one year. The California Court of Appeal disagreed. It explained that under state law emeliorative sentencing changes may be applied retroactively that the lighter punishment is imposed. but that this was not one of those cases:
When the Legislature amended applicable portions of 12022.6, it said, in effect, the punishment meted out by this statute is adequate. but the triggering threshold should be modified to account for the realities of inflation. Applying the statute to acts committed before the amendment, when the effects of inflation were less pronounced, runs contrary to the amendment's theoretical underpinnings. We cannot conclude the Legislature intended such) a result.
People v Morrell. No A063968, slip op at 8-9 (Cal Ct App. June 19, 1995). Three months later the Supreme Court of California denied review.
On February 29, 1996, after petitioner's conviction had become final, the Supreme Court of California resolved a split among the courts of appeal and held that the 1992 amendment to section 12022.6 should apply retroactively to convictions not final at the time the amendment became operative. People v Nasalga, 12 Cal.4th 784, 787 (1996). Petitioner claims he is entitled to the benefit of this holding. The state courts denied his claim on collateral review.
Petitioner's claim appears moot because he has completed his sentence. Cf Spencer v Kemna, 523 U.S. 1, 7 (1998) (once sentence has expired, some concrete and continuing injury other than the now-ended incarceration or parole — some "collateral consequence" of the conviction — must exist if the suit is to be maintained and hot considered moot). It would fail in any event. It is well-settled that federal habeas relief is unavailable for errors in the interpretation or application of state law, see Estelle v McGuire 502 U.S. 62, 67-68 (1991); Peltier v Wright, 15 F.3d 860, 861-62 (9th Cir. 1994). or for errors in the state post-conviction review process, see Franzen v Brinkman, 877 F.2d 26, 26 (9th Cir 1989). That petitioner has been denied the development or evolution of state law "does not warrant issuing a writ of habeas corpus." Pulley v Harris, 465 U.S. 37, 42 (1984). Rather, it is a matter "that the state courts should consider, if they are so inclined, free of the constraints of the federal writ." Id.
Petitioner concedes as much in his traverse: "The remaining [sentencing] issues are deemed moot . . . as petitioner has completed his incarceration. Traverse at 1.
Respondent correctly points out that federal habeas relief is also unavailable under the rationale of Teague v Lane, 489 U.S. 288 (1989), because petitioner's claim rests on a "new rule" announced after his state judgment of conviction became final on direct review. See Stringer v Black, 503 U.S. 222, 227 (1992) ("Subject to two exceptions. a case decided after petitioner's conviction and sentence became final may not be the predicate for federal habeas relief unless the decision was dictated by precedent existing when the judgment became final.").
4. Multiple punishment
Petitioner claims that the sentence imposed for offering forged instruments for recording is barred under California Penal Code section 654 because section 654 does not permit that he be punished for both forgery and offering forged instruments for recording. Petitioner also claims that imposing sentences for both forgery and offending forged instruments for recording violates due process and double jeopardy because it constitutes multiple punishment for a single or same act. The California courts denied the claims on collateral review.
Petitioner's section 654 and due process claims were denied on the merits. His double jeopardy claim was denied for "lack of diligence." however. In re Morrell, No S068827, slip op at 1 (Cal Oct 28, 1998). It is procedurally barred. See supra at p 14, n6.
Petitioner's claims appear moot (see supra at p 16), and, in any event, fail. Section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Cal Penal Code § 654(a). The California courts rejected petitioner's claim that his sentence violated section 654. Thus court has 110 authority to review petitioner's section 654 claim. See Watts v Bonneville, 879 F.2d 685, 687 (9th Cir 1989) (alleged violation of section 654 is state law claim not cognizable in federal habeas under § 2254).
The constitutional protection against multiple punishment is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Garrett v United States, 471 U.S. 773, 793 (1985);; Ohio v Johnson, 467 U.S. 493, 499 (1984); Brown v Ohio. 432 U.S. 161, 165 (1977). In the federal courts, the test established in Blockburger v United States, 284 U.S. 299, 304 (1932), ordinarily determines whether a defendant has been punished twice for the "same offense." See Rutledge v. United States, 517 U.S. 292, 297 (1996); Ohio v Johnson, 467 US at 499 n8. If "the same act or transaction constitutes a violation of two distinct statutory provisions. the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger, 284 US at 304.
In Grady v Corbin, 495 U.S. 508 (1990). the Court established a "same conduct" test, but Grady was overruled on this point in United States v Dixon, 509 U.S. 688 (1993) leaving the Blockburger "same elements" test in place. See United States v Wright, 79 F.3d 112, 114 (9th Cir 1996) (finding that Blockburger test is only test for double jeopardy claim after Dixon); United States v Wolfswinkel, 44 F.3d 782, 785 (9th Cir 1995) (finding that strict application of Blockburger test is appropriate after Dixon).
The question of multiple punishment ultimately is one of legislative intent, however. Missouri v Hunter, 459 U.S. 359, 366-68 (1983). So even if two crimes are the same under Blockburger, a federal court's inquiry is at an end if it is evident that the legislature intended to authorize cumulative punishments. See Johnson, 467 US at 499 n8; Hunter, 459 US at 369; United States v Martinez 49 F.3d 1398, 1402 n6 (9th Cir 1995); accord United States v Wolfswinkel, 44 F.3d 782, 784 (9th Cir 1995) ("If Congress enacts statutes that indicate an intent to impose separate punishments, those statutes define separate offenses, and the punishments do not violate the Constitution.") (citing Albernaz v United States, 450 U.S. 333, 344 (1981)).
There was no multiple punishment for the "same offense" here because petitioner was charged. convicted and sentenced for violating separate statutory provisions (California Penal Codes sections 470 and 115) based on separate acts or transactions with separate criminal objectives and intent. Petitioner would forge a particular victim's name on a deed of reconveyance on one date and then record that forged deed on a different date. The state trial court did not unreasonably conclude that petitioner's fraudulent scheme was not "a single period of aberrant behavior but a series of individual acts aimed at swindling thousands of dollars from individual victims." Nov 5, 1993 Rep Tr at 20 (Resp't Ex 2). Petitioner is not entitled to federal habeas relief on his claims of multiple punishment for a single or same act. Accord United States v Garlick, 240 F.3d 789, 793-94 (9th Cir 2001) (two counts of wire fraud based on two separate fax transmissions not multiplicitous, even if only first fax was sent by defendant and first fax could have been used to prove defendant caused second fax to be sent).
California Penal Code section 470 provides in relevant part: "Every person who, with intent to defraud, knowing that he or she has no authority to do so, signs the name of another person" to an instrument such as a deed of reconveyance is guilty of forgery. California Penal Code section 115 provides in relevant part: "Every person who knowingly procures or offers any false or forged instrument to be filed. registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States is guilty of a felony."
5. Ineffective assistance of counsel on appeal
Petitioner argued on direct appeal that he must be afforded a new trial because the destruction of the court reporter's notes of his trial compromised his constitutional right to appeal. The California Court of Appeal rejected the claim on the ground that petitioner "is solely responsible for the predicament with which he is faced." People v Morrell, No A063968, slip op at 4 (Cal Ct App. June 19, 1995).
Petitioner recasts that same claim here by instead alleging that he was denied his right to effective assistance of counsel on appeal because of the destruction of the court reporter's notes. The California courts denied petitioner's claim on collateral review. The state courts were not "clearly erroneous.
Petitioner understandably recasts his claim on federal habeas because there is no United States Supreme Court authority holding that a state criminal defendant has a constitutional right to a new trial where, as here, the court reporter's notes were lawfully destroyed and efforts to settle the record failed. Cf Norvell v Illinois, 373 U.S. 420, 423-24 (1963) (no constitutional violation where no trial transcript available due to death of court reporter). This is not a case in which the State failed to record portions of a criminal trial. Cf Madera v Risley, 885 F.2d 646, 648-49 (9th Cir. 1989). Petitioner's trial was recorded and would have been transcribed but for petitioner's decision to free and remain a fugitive for over 11 years. The State cannot be faulted. Accord Bransford v Brown, 806 F.2d 83, 85-86 (6th Cir 1986) (noting that there is no constitutional right to a trial transcript where the production of such is impossible and the failure to produce it was not invidiously motivated).
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of righit. Evitts v Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v Washington, 466 U.S. 668 (1984). Miller v Keeney, 882 F.2d 1428, 1433 (9th Cir 1989); United States v Birtle, 792 F.2d 846, 847 (9th Cir 1986). A defendant must show that counsel's advice fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. Miller, 882 F.2d at 1434 n9 (citing Strickland, 466 US at 688, 694; Birtle, 792 F.2d at 849).
In a recent analogous case. in which the defendant challenged his appellate counsel's failure to file a merits brief, the Supreme Court declined to deviate from the standard set out in Strickland and held that a defendant must first show that his appellate counsel was unreasonable in "failing to find arguable issues to appeal — that is. that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them." Smith v Robbins, 120 S Ct 746, 764 (2000). The Court added that if a defendant succeeds in such a shoing, he "then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for counsel's unreasonable failure to file a merits brief he would have prevailed on his appeal." Id (citing Strickland, 466 US at 694). Prejudice will not be presumed. See also Bransford v Brown, 806 F.2d 83, 86-87 (6th Cir 1986) (requiring showing of prejudice where defendant claimed ineffective assistance of appellate counsel because counsel did not attempt to locate missing transcript and did not raise issue on appeal).
Petitioner has not satisfied either prong of the Strickland test. First, he has not shown that his appellate counsel unreasonably failed to raise nonfrivolous issues on appeal because of the destruction of the court reporter's notes. Appellate counsel in fact raised five issues on direct appeal, including a claim for a new trial based on the destruction of the court reporter's notes. Two of the issues were even meritorious, resulting in the court striking a restitution fine and awarding petitioner additional presentence credits. Second, petitioner has not identified any meritorious issues counsel could have raised if the trial transcript had been available. He has not demonstrated that there is a reasonable probability that but for the destruction of the court reporter's notes, he would have prevailed on appeal. Cf Robbins, 120 S Ct at 764; Bransford, 806 F.2d at 87. Petitioner is not entitled to federal habeas relief on this claim.
Prejudice cannot be presumed where, as here, (1) the court reporter's notes were destroyed pursuant to a valid state procedure. (2) the parties' attempt to reconstruct the trial record failed, and (3) appellate counsel filed an appellate brief with several nonfrivolous issues, including the destruction of the court reporter's notes. Cf Robbins, 120 S Ct at 765 (prejudice cannot be presumed when appellate counsel complied with valid state procedure for determining whether defendant's appeal is frivolous and State did not leave defendant without counsel on appeal). This is not a case in which there was an "actual or constructive absence of the assistance of counsel" on appeal. Cf Lozada v Deeds, 964 F.2d 956, 958-59 (9th Cir 1992) (failure to file notice of appeal without petitioner's consent error per se).
CONCLUSION
For the foregoing reasons. the petition for a writ of habeas corpus is DENIED and all pending motions are DISMISSED as moot.
The clerk shall enter judgment in favor of respondent and close the file.
JUDGMENT. [FRCP 58]
This action came on for decision before the court, the Honorable Vaughn R. Walker, District Judge, presiding, and the issues having been duly considered and a decision having been duly rendered.
IT IS ORDERED AND ADJUDGED that judgment is entered in favor of respondent and against petitioner Richard J. Morrell.