Opinion
Civil No. 04cv2400 BTM(RBB), Report and Recommendation Re: Denial of Petition for Writ of Habeas Corpus [Doc. No. 1].
March 3, 2006
Petitioner Somphone Nasrichampang, describes himself as proceeding pro se, but he is being assisted by counsel. Nasrichampang filed his Petition for Writ of Habeas Corpus [doc. no. 1] and Memorandum of Points and Authorities in Support of Petition [doc. no. 2] pursuant to 28 U.S.C. § 2254 on December 1, 2004. Petitioner alleges two main grounds for relief: (1) His due process rights under the Fourteenth Amendment were violated when the trial court admitted third-party statements into evidence, which were the product of police coercion and implicated Nasrichampang; and (2) he was denied effective assistance of counsel under the Sixth Amendment because of multiple shortcomings by his trial attorney: She allowed him to select an invalid defense without a full awareness of the evidence and consequences, failed to argue for a severance, proclaimed Petitioner's guilt in her opening statement, and informed the jury that the state's key witness had taken a lie detector test. (Pet. 6.)
Petitioner's name is spelled several ways in the record. His Petition is titled Nasrichampang v. Woodford, 04CV2400 BTM(RBB) (S.D. Cal. filed Dec. 1, 2004). (Pet.) The signature page of the Petition identifies Petitioner as "Narichampang." (Id. at 8.) The California Supreme Court denied a petition for review in an order bearing the caption People v. Nasirichampang. (Lodgment No. 23, People v. Nasirichampang, No. D038282, order at 1 (Cal. Sept. 17, 2003). Where Petitioner's surname is used in the discussion that follows, the Court uses the name that appears on the federal Petition, "Nasrichampang."
The Petition on file in this matter was signed by Nasrichampang. (Pet. 8.) However, page one of the document contains the notation "c/o Patrick Morgan Ford, Attorney," with an address of 1901 First Avenue, Suite 400, San Diego, California 92101. (Id. at 1.) The twenty-three page memorandum in support of the Petition was signed by Petitioner, but its first page also refers to attorney Ford. (Pet'r's Mem. i, 23.) A fourteen-page Traverse was submitted by Petitioner. (Traverse.) On pages one and fourteen of the document, Patrick Morgan Ford is described as "Attorney at Law, Assisting Somphone Nasrichampang, Petitionerin propria persona." (Id. at 1, 14.) The Traverse is signed by someone other than attorney Ford or Petitioner. (See id. at 14.)
Ghostwriting is frowned upon. Duran v. Carris, 238 F.3d 1268, 1271-73 (10th Cir. 2001) (holding that "any ghostwriting of an otherwise pro se brief must be acknowledged by the signature of the attorney involved"); Ricotta v. California, 4 F. Supp. 2d 961, 985-88 (S.D. Cal. 1998). In Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971), the First Circuit was concerned that "in some cases actual members of the bar represent petitioners, informally or otherwise, and prepare briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed on members of the bar, typified by F.R.Civ.P. 11. . . ." The same concern is raised by Ford's participation in this case.
Any future ghostwriting by attorney Ford must be acknowledged by his signature on all court documents, including objections to this Report and Recommendation.
On April 13, 2005, Respondent filed a combined Answer and Memorandum of Points and Authorities [doc. no. 9] and a Notice of Lodgment [doc. no. 10]. Nasrichampang filed his Traverse on August 1, 2005 [doc. no. 14].
After reviewing the Petition, Petitioner's Memorandum, Respondent's Answer and Memorandum, the Lodgments, and the Traverse, this Court finds that Nasrichampang is not entitled to the relief requested and recommends that his Petition for Writ of Habeas Corpus be DENIED for the reasons outlined below.
I. FACTUAL BACKGROUND
At the time of the relevant events, Petitioner was twenty-four years old, and his brother, Somchit Nasrichampang, was twenty-eight. (Lodgment No. 11, Rep.'s Tr. vol. 7, 951-52 (Dec. 15, 2000). The escalating confrontations began on March 2, 2000, when Somchit Nasrichampang ("Somchit") and a man named Jonathan Ziebart had an altercation at Sycuan Casino. (Lodgment No. 8, Rep.'s Tr. vol. 4, 517, 529-30, Dec. 12, 2000.) The confrontation involved a woman.
Ziebart took Leonora Sison to Sycuan to celebrate her birthday; they were followed there in a separate car by Ivar Gallidan and Ben Hill, friends of Ziebart. (Lodgment No. 8, Rep.'s Tr. vol. 4, 517-19; Lodgment No. 9, Rep.'s Tr. vol. 5, 633-34, Dec. 13, 2000.) Sison saw Somchit outside the casino smoking, and she went over to talk with him. (Lodgment No. 8, Rep.'s Tr. vol. 5, 520-21.) She had known Somchit for several years and knew him as "Joy." (Id. at 514-16.) Sison was talking to Somchit outside when Ziebart approached, and in Tagalog, she asked Ziebart if he wanted to meet Somchit. (Id. at 520-21.) Ziebart shook his head and went back inside the casino. (Id. at 522, 524.)
Later, as Sison, Ziebart, Gallidan, and Hill were leaving, Somchit called Sison, using a nickname. (Id. at 525-27.) Ziebart became angry and started toward Somchit. (Id. at 528-29.) Ziebart ran up to the car in which Somchit was a passenger and held his hands out as if he were pointing a gun. (Lodgment No. 9, Rep.'s Tr. vol. 5, 559-62; Lodgment No. 10, Rep.'s Tr. vol. 6, 734, Dec. 14, 2000.) The car stopped, and Ziebart began laughing and mocking Somchit in Tagalog, calling him "scared" and said, "You're all red." (Lodgment No. 9, Rep.'s Tr. vol. 5, 559-60.) Somchit jumped out of the car; Gallidan and Hill got out of their cars to back up Ziebart. (Lodgment No. 10, Rep.'s Tr. vol. 6, 739-40.) Sison then told Ziebart to stop and said, "Let's go home." (Lodgment No. 9, Rep.'s Tr. vol 5, at 564.) Ziebart walked away, and Somchit and his friends drove off. (Id. at 565.)
The day after the Sycuan incident, Somchit called Sison and asked, "Who is that guy?" (Lodgment No. 8, Rep.'s Tr. vol. 4, 517; Lodgment No. 9, Rep.'s Tr. vol. 5, 570-71.) He told her that he felt disrespected and wanted to fight Ziebart. (Id.) Sison immediately relayed that information to Ziebart. (Lodgment No. 9, Rep.'s Tr. vol. 5, 571.) Ziebart responded, "See if he can find me." (Id. at 572.)
Days later, Ziebart, Hill, and some friends were in National City when they spotted Somchit coming out of a white car. (Lodgment No. 10, Rep.'s Tr. vol. 6, 671, 699-701.) Ziebart said that was "the dude from Sycuan." (Id. at 705.) He started "talking trash" with Somchit, who ran into a nearby house. (Id. at 701, 705.) ziebart and Hill went to the front gate of the house and were telling Somchit to come out. (Id. at 671, 701.) Somchit flipped Ziebart off and told him, "I'll get you." (Lodgment No. 11, Rep.'s Tr. vol. 7, 947-48.)
Ziebart left, gathered friends, and returned to where Somchit's car was parked. (Lodgment No. 10, Rep.'s Tr. vol. 6, 702.) He and two friends vandalized Somchit's car. (Lodgment No. 8, Rep.'s Tr. vol. 4, 439; Lodgment No. 10, Rep.'s Tr. vol. 6, 702.) They smashed a window with a crowbar and took the car's hubcaps. (Lodgment No. 10, Rep.'s Tr. vol. 6, 702.)
Minutes later, Somchit found his car and called Nasrichampang, his brother. (Lodgment No. 11, Rep.'s Tr. vol. 7, 1006-07, 1022.) Petitioner said, "I'll be there," and he proceeded, with Souksakhone Douangmala ("Souk"), in Petitioner's white Acura Integra, to Cesar Salavaria's house, where the vandalized car was located. (Lodgment No. 12, Rep.'s Tr. vol. 8, 1061-63, Dec. 18, 2000.) Souk testified that when they arrived at Cesar's apartment, Somchit had a gun in his waistband, and he told Petitioner, "Let's go get those fools." (Lodgment No. 11, Rep.'s Tr. vol. 7, 1025-26.)
They found Ziebart and his friend Hill sitting in Ziebart's car outside an apartment complex in National City, and Nasrichampang drove up in front of them. (Lodgment No. 9, Rep.'s Tr. vol. 5, 656-58.) Somchit got out of Petitioner's car and pointed a gun at Ziebart and Hill, who both began to run toward an apartment. (Id. at 659-62; Lodgment No. 11, Rep.'s Tr. vol. 7, 1007, 1026.) Nasrichampang yelled to his brother, "Eng man! Eng man!," which means "shoot him" in Laotian. (Lodgment No. 11, Rep.'s Tr. vol. 7, 1027.) Somchit pointed the gun at Ziebart and said, "What's up? What's up now?" (Lodgment No. 9, Rep.'s Tr. vol. 5, 662.) He fired two or three shots, hitting Ziebart. (Id. at 662; Lodgment No. 10, Rep.'s Tr. vol. 6, 680.) Somchit got back in the car, and Petitioner drove away with the headlights off. (Lodgment No. 11, Rep.'s Tr. vol. 7, 1028; Lodgment No. 12, Rep.'s Tr. vol. 8, 1047.)
Hill returned to find Ziebart gasping for air, lying on the ground. (Lodgment No. 10, Rep.'s Tr. vol. 6, 680-81.) Petitioner dropped Somchit off at his house, and Somchit told him to get rid of the car. (Lodgment No. 12, Rep.'s Tr. vol. 8, 1048-49.) Nasrichampang then told Souk not to tell anyone about what he saw. (Id. at 1050-51.)
When the National City Police arrived, they found two bullet casings marked "R-P 9mm Luger" on the street in front of the apartment complex. (Lodgment No. 7, Rep.'s Tr. vol. 3, 198-99, 290-92, Dec. 11, 2000.) The casings matched 9mm bullets later found in Somchit's apartment. (Lodgment No. 8, Rep.'s Tr. vol. 4, 421.) At trial, Hill identified Somchit as the man he saw shoot Ziebart (Lodgment No. 9, Rep.'s Tr. vol. 5, 666), and several witnesses identified Petitioner's white Acura Integra as the car present at the shooting. (Lodgment No. 10, Rep.'s Tr. vol. 6, 857; Lodgment No. 11, Rep.'s Tr. vol. 7, 922, 1021.)
Ziebart died at the hospital of gunshot wounds. (Lodgment No. 8, Rep.'s Tr. vol. 4, 437.)
II. PROCEDURAL BACKGROUND
Petitioner and his brother were tried together. On December 28, 2000, a jury found Somchit and Nasrichampang guilty of first degree murder. (Lodgment No. 1, Clerk's Tr. vol. 1, 303, 305.) On May 30, 2001, Petitioner was sentenced to twenty-five years to life in state prison. (Id. at 305, 309.)
Nasrichampang filed notices of appeal on July 13 and 19, 2001. (Id. at 309, 311.) In Petitioner's appeal, he claimed: (1) Souk's testimony was a product of police coercion and resulted in the prejudicial violation of Nasrichampang's due process rights; (2) the trial court erred in failing to instruct sua sponte on voluntary murder as a lesser included offense of murder; (3) there was no evidence to corroborate Souk's testimony as required under Penal Code section 1111; (4) the trial court violated Petitioner's due process rights by denying the motion to sever his trial from that of his brother; and (5) trial counsel rendered ineffective assistance. (Lodgment No. 17, Brief for Appellant at ii, 52-53, People v. Nasirichampang, No. D038282 (Cal.Ct.App. June 9, 2003).) While his appeal was pending, Nasrichampang filed a petition for writ of habeas corpus with the California Court of Appeal. (Lodgment No. 18, Petition for Writ of Habeas Corpus, In re Nasirichampang, No. D039798 (Cal.Ct.App. filed Apr. 2, 2002.) The court affirmed Nasirichampang's conviction and denied his petition for writ of habeas corpus. (Lodgment No. 21, People v. Nasirichampang, No. D038282, slip op. at 1 (Cal.Ct.App. June 9, 2003).)
On July 15, 2003, Petitioner filed a petition for review with the California Supreme Court claiming: (1) Souk's testimony was a product of police coercion and resulted in the violation of his Fourteenth Amendment right to due process; and (2) trial counsel rendered ineffective assistance. (Lodgment No. 22, Petition for Review at ii, 12, People v. Nasirichampang, No. S117524 (Cal. Sept. 17, 2003).) The court denied the petition without opinion or citation on September 17, 2003. (Lodgment No. 23, People v. Nasirichampang, No. S117524, order at 1 (Cal. Sept. 17, 2003).)
Nasrichampang filed a petition for writ of certiorari with the United States Supreme Court on December 12, 2003. (Lodgment No. 25, Petition for Writ of Certiorari, Nasirichampang v. California, 540 U.S. 1195 (2004) (No. 03-7968).) The Court denied the petition on February 23, 2004. (Lodgment No. 26,Nasirichampang v. California, 540 U.S. 1195 (2004) (No. 03-7968) (denying certiorari).)
Nasrichampang filed his Petition for Writ of Habeas Corpus with this Court on December 1, 2004. (Pet. 1.) Respondent filed an Answer and Memorandum of Points and Authorities on April 13, 2005. (Answer 1.) Petitioner filed his Traverse on August 1, 2005. (Traverse 1.)
III. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C.A. § 2244 (West 1994 Supp. 2005), applies to all federal habeas petitions filed after April 24, 1996. Woodford v. Garceau, 538 U.S. 202, 204 (2003) (citing Lindh v. Murphy, 521 U.S. 320, 326 (1997)). AEDPA sets forth the scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application 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.A. § 2254(a) (West 1994); see also Reed v. Farley, 512 U.S. 339, 347 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991). Because Nasrichampang's Petition was filed on December 1, 2004, AEDPA applies to this case. See Woodford, 538 U.S. at 204.
In 1996, Congress "worked substantial changes to the law of habeas corpus." Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). Amended § 2254(d) now reads:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.28 U.S.C.A. § 2254(d) (West Supp. 2005).
To present a cognizable federal habeas corpus claim, a state prisoner must allege that his conviction was obtained "in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C.A. § 2254(a). Petitioner must allege that the state court violated his federal constitutional rights. See Reed, 512 U.S. at 347; Hernandez, 930 F.2d at 719; Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990).
A federal district court does "not sit as a `super' state supreme court" with general supervisory authority over the proper application of state law. Smith v. McCotter, 786 F.2d 697, 700 (5th Cir. 1986); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (holding that federal habeas courts must respect a state court's application of state law); Jackson, 921 F.2d at 885 (concluding that federal courts have no authority to review a state's application of its law). Federal courts may grant habeas relief only to correct errors of federal constitutional magnitude. Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989) (stating that federal courts are not concerned with errors of state law unless they rise to level of a constitutional violation).
The Supreme Court, in Lockyer v. Andrade, 538 U.S. 63 (2003), stated that "AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) — whether a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 71 (citation omitted). In other words, a federal court is not required to review the state court decision de novo. Id. Rather, a federal court can proceed directly to the reasonableness analysis under § 2254(d)(1). Id.
The "novelty" in § 2254(d)(1) is "the reference to `Federal law, as determined by the Supreme Court of the United States.'"Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir. 1996) (en banc),rev'd on other grounds, 521 U.S. 320 (1997) (emphasis added). Section 2254(d)(1) "explicitly identifies only the Supreme Court as the font of `clearly established' rules." Id. "[A] state court decision may not be overturned on habeas corpus review, for example, because of a conflict with Ninth Circuit-based law."Moore, 108 F.3d at 264. "[A] writ may issue only when the state court decision is `contrary to, or involved an unreasonable application of,' an authoritative decision of the Supreme Court."Id.; see also Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996); Childress v. Johnson, 103 F.3d 1221, 1225 (5th Cir. 1997); Devin v. DeTella, 101 F.3d 1206, 1208 (7th Cir. 1996).
Furthermore, with respect to the factual findings of the trial court, AEDPA provides:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.28 U.S.C.A. § 2254(e)(1) (West Supp. 2005).
IV. DISCUSSION
Petitioner alleges two grounds for relief: (1) His due process rights under the Fourteenth Amendment were violated when third-party statements, which were the product of police coercion, were admitted; and (2) he was denied effective assistance of counsel under the Sixth Amendment because his trial attorney allowed him to select an invalid defense without a full awareness of the evidence and consequences, failed to argue for a severance, proclaimed Nasrichampang's guilt in her opening statement, and informed the jury that the state's key witness had taken a lie detector test. (Pet. 6.)
In response to Petitioner's first claim, Respondent argues that there is no "clearly established" United States Supreme Court case law on the admission of a third party's allegedly coerced testimony; therefore, Nasrichampang cannot obtain federal habeas relief. (Answer 10, 15.) Respondent further argues that Petitioner has not carried his burden of showing that the state appellate court's factual determination that Souk's trial testimony was not coerced was "objectively unreasonable." (Id. at 10, 19.)
In response to Nasrichampang's second claim, Respondent argues Petitioner failed to show that the state court's determination that he received effective assistance of counsel was contrary to, or an unreasonable application of, United States Supreme Court authority. (Id. at 26.)
A. Petitioner's Fourteenth Amendment Right to Due Process Was Not Violated by the Admission of Souk's Allegedly Coerced Testimony.
Nasrichampang's first claim challenges his conviction based on his constitutional right to due process under the Fourteenth Amendment. (Pet. 6.) He asserts that on March 15, 2000, police interrogated fifteen-year old Souk using threats and questionable tactics. (Pet'r's Mem. 4.) "Souk insisted he knew nothing of the incident. . . ." (Id. at 5.) The next day, when Souk was arrested, he gave a statement implicating himself, Nasrichampang, Somchit, and Cesar Salavaria. (Id.) Souk subsequently agreed to testify for the prosecution in exchange for not being prosecuted as an adult, and he also pled guilty to voluntary manslaughter. (Id.) Nasrichampang claims the plea agreement was coercive because under its terms, Souk could receive a sentence ranging between time served and ten years at the California Youth Authority. (Id. at 15.) Souk's sentence was dependent upon "truthful" testimony. (Id.)
Petitioner blurs the distinction between the coercion of pretrial statements from Souk and the testimony Souk gave at trial. (Compare Pet. 6, with Pet'r's Mem. 7.) In large part, Narichampang claims the trial court violated his due process rights when it admitted Souk's testimony, because Souk's similar pretrial statements were coerced by the police. (Pet'r's Mem. 7, 12-14.) Respondent argues that in the absence of clearly established federal law, this is not an appropriate claim for habeas relief. (Answer 10-11.)
1. There Is No Clearly Established Supreme Court Case Law Holding that the Admission of Coerced Third-Party Statements Is a Violation of Due Process.
According to both Petitioner and Respondent, whether third-party testimony obtained through coercion is admissible at trial is a question that has not been directly answered by the Supreme Court. (See Pet'r's Mem. 12; Answer 10.) However, the Court has held that the accused has the right (under the Fifth Amendment's protection against self-incrimination) not to be convicted with his own coerced statements. Michigan v. Tucker, 417 U.S. 433, 444 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973); Jackson v. Denno, 378 U.S. 368, 376-77 (1964).
a. Coercion of False Testimony.
Petitioner's claim does not distinguish between the knowing use of coerced false testimony and the use of coerced testimony in general. (Pet. 6; Pet'r's Mem. 7-18.) Nasrichampang refers to "contradictory statements" without expressly asserting that Souk's trial testimony was false. (Id.) If he contends that the prosecution knowingly used false testimony, there is Supreme Court authority on point.
In Hysler v. Florida, 315 U.S. 411 (1942), the Court addressed third-party witness's testimony. The Court held that when a state "knowingly use[s] false testimony which was extorted from a witness `by violence and torture,' one convicted may claim the protection of the Due Process Clause against a conviction based upon such." Id. at 413. Here, Nasrichampang does not allege, and offers no evidence to show, that the prosecutor knew that Souk gave false testimony at trial, which was the product of coercion. See id. at 422 n. 4. Instead, he appears to contend that the admission of any testimony at trial, which was the product of unlawful police coercion, violates due process. (See Pet'r's Mem. 7.)
b. Coercion of Testimony
Several circuit courts have held that coerced third-party statements may violate due process. Williams v. Woodford, 384 F.3d 567, 593 (9th Cir. 2002); United States v. Merkt, 764 F.2d 266, 274 (5th Cir. 1985); United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir. 1984); La France v. Bohlinger, 499 F.2d 29, 34 (1st Cir. 1974). However, the defendant, or in a habeas case, the petitioner, must show that "`the government's investigation methods resulted in a fundamentally unfair trial.'"Merkt, 764 F.2d at 274 (quoting Chiavola, 744 F.2d at 1273). Extreme coercion or torture of the testifying witness may result in an unfair trial. Chiavola, 744 F.2d at 1273. Promises to "go easy" on witnesses or to allow them to "escape the death penalty by talking freely" are common practices, which may not be favored, but are not constitutional violations of the accused's constitutional rights unless the coerced statements are used to convict him. See Buckley v. Fitzsimmons, 20 F.3d 789, 794-95 (7th Cir. 1994); see also Williams, 384 F.3d at 593 (stating that "a promise of leniency accompanied by threats or other coercive practices constitutes improper influence and makes a subsequent inculpatory statement involuntary").
Here, the police made several statements to Souk during their investigation, suggesting he could receive the death penalty, stating they had his fingerprints in the car, claiming they were using a voice stress analyzer to tell when he was lying, and telling him that California is tough on juveniles. (Lodgment No. 3, Req. Augmentation Attach. (Interview Tr.) 16, 18, 26, 28, 42.) There is no evidence in the record that the police used violence or the threat of violence. The California Court of Appeal found that, even if the statement Souk gave at his first interview with the police was coerced, the testimony Souk gave at trial was not. (Lodgment No. 21, People v. Nasirichampang, No. D038282, slip op. at 8, 10-11.)
Petitioner acknowledges that "[t]he Supreme Court has never directly addressed the constitutional parameters of admitting a co-defendant's coerced statement or testimony." (Pet'r's Mem. 12.) He cites a dissenting opinion in Malinski v. New York, 324 U.S. 401, 430-31 (1945) (Rutledge, J., dissenting),' and opinions from various circuit courts as support for his claim. (Id. at 12-14.) Petitioner argues that case law demonstrates "well-established federal law that the admission of coerced statements or testimony by any witness violates due process of law." (Id. at 14.)
However, clearly established federal law "as determined by the Supreme Court," refers to the holdings of the Supreme Court and does not include dicta. Earp v. Ornoski, 431 F.3d 1158, 1182 (9th Cir. 2005). "Circuit court precedent is relevant only to the extent that it clarifies what constitutes clearly established law." Id. In Earp, the Ninth Circuit observed that circuit precedent "derived from an extension of a Supreme Court decision is not `clearly established federal law as determined by the Supreme Court[.]'" Id. (explaining its holding in Duhaime v. Ducharme, 200 F.3d 597, 602-03 (9th Cir. 2000)).
The circuit court authority on which Petitioner relies does not interpret a particular Supreme Court decision. Therefore, his reliance on it is misplaced. "He must show that the California Court of Appeal decision was `contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.'" Arredondo v. Ortiz, 365 F.3d 778, 782 (9th Cir. 2004) (citing 28 U.S.C. § 2254(d)(1)).
"A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." Mitchell v. Esparza, 540 U.S. 12, 17 (2003). The Supreme Court has not held that admission of coerced third-party testimony against a defendant is a violation of the Due Process Clause of the Fourteenth Amendment. Therefore, the state court's decision was not "contrary to [and did not] involve an unreasonable application of" federal law as determined by the Supreme Court. The law regarding the use of coerced third-party testimony "is, at best, ambiguous." See id.; see also 28 U.S.C. § 2254(d)(1).
2. Petitioner's Generic Claim That Souk's Testimony Infected the Entire Trial and Resulted in a Violation of Due Process Fails.
Petitioner also cites California Supreme Court and other federal court decisions in support of a variation of his argument. Nasrichampang asserts that the admission of Souk's trial testimony resulted in a fundamentally unfair trial and violated his Fourteenth Amendment due process right. (Pet'r's Mem. 14; Traverse 2, 4.) Under this version of the claim, "[t]he relevant question in this case . . . is `whether the admission of evidence . . . so infected the [trial] proceeding with unfairness as to render the jury's imposition [of a conviction] a denial of due process.'"Ramano v. Oklahoma, 512 U.S. 1, 12-14 (1994) (citing Sawyer v. Smith, 497 U.S. 227, 244 (1990); Darden v. Wainwright, 477 U.S. 168, 178-81 (1986)).
As the California Court of Appeal noted, "Souk was `subject to cross-examination and impeachment, and [Nasrichampang] possessed "adequate tools" with which to challenge the reliability of [Souk's] testimony, being fully apprised of the circumstances surrounding [Souk's] earlier interrogation.'" (Lodgment No. 21,People v. Nasirichampang, No. D038282, slip op. at 10 (citingPeople v. Douglas, 50 Cal. 3d 468, 503, 268 Cal. Rptr. 126, 143-44, 788 P.2d 640, 657 (1990)).)
In Nichols v. Garcia, No. (98-1301 CRB (PR), 1999 U.S. Dist. LEXIS 9961, at *24-25 (N.D. Cal. June 28, 1999), the court held a petitioner's due process right to a fair trial was not violated where a third party who was threatened with the death penalty and offered a plea agreement testified at trial because petitioner's counsel was able to cross-examine the third-party witness and give a closing argument addressing coercion and pressure. Id.;see also Williams, 384 F.3d at 594 (holding no due process violation when witness was "subject to cross-examination, through which the appellant brought out the facts of the interrogation and the inducement to testify, and that the jury was free to observe the witness's demeanor and gauge his credibility")
Souk was subject to impeachment and cross-examination by Petitioner's defense counsel and counsel for his brother, the codefendant; and both pointed out Souk's contradictory statements in closing argument. (Lodgment No. 12, Rep.'s Tr. vol. 8, at 1110-78, 1198-1204.) The testimony did not "`so infect the entire trial that the resulting conviction violate[d] due process.'" See Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citation omitted).
a. Petitioner Fails to Show That the State Appellate Court's Finding That Souk's Testimony Was Not Coerced Was Objectively Unreasonable.
In Lambert v. Blodgett, 393 F.3d 943, 971-78 (9th Cir. 2004), the court explained the standards of review under AEDPA. A challenge to a state court's legal conclusions may not be set aside unless the decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id. at 973 (quoting 28 U.S.C.A. § 2254 (d) (1). A mixed question of law and fact requires a separate analysis of the state court's factual findings and its legal conclusions. Id. at 977-78. Fact findings are given deference under §§ 2254(d)(2) and (e)(1), but legal conclusions are reviewed under § 2254(d)(1). Id. at 978.
In this case, whether the testimony of third-party witness Souk was voluntary or coerced raises a mixed question of fact and law. The Ninth Circuit, in deciding a related issue — whether a guilty plea was voluntary — reviewed the state court decision as raising questions of fact and law. Id. at 976-77 (citing Marshall v. Lonberger, 459 U.S. 422, 431-32 (1983)); see Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir. 1996) (holding that voluntariness of a confession was a legal issue but state court finding that there were no threats or promises made, but "merely psychological appeals to defendant's conscience" was a factual conclusion). The same rationale applies to a review of Souk's trial testimony.
Nasrichampang's claim challenges the factual findings of the state trial and appellate courts. In reviewing the findings under AEDPA, this Court is limited to deciding whether "the state-court decision `was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (quoting 28 U.S.C. § 2254(d)(2)). Section 2254(e)(1) provides the effect to be given to factual determinations: "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C.A. § 2254(e)(1).
"[Section 2254(d)(2)] — the `unreasonable determination' clause — applies most readily to situations where petitioner challenges the state court's findings based entirely on the state record."Taylor, 366 F.3d at 999. Thus, this Court's review of Petitioner's first claim examines whether the California state courts' findings were "not merely wrong, but actually unreasonable." Id. If the factual findings survive this intrinsic record review, they are presumed correct. Id. at 1000. That presumption applies to any challenge based on new evidence Petitioner presents for the first time in federal court.Id.
Federal habeas review must give deference to state court decisions. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This Court is not to make an "independent inquiry into whether the state court was correct as a de novo matter." Yarborough v. Alvarado, 541 U.S. 652, 665 (2004). AEDPA establishes a "highly deferential standard for reviewing state-court determinations." Bruce v. Turhune, 376 F.3d 950, 953 (9th Cir. 2004). Not only are the trial court's factual findings entitled to deference, but the appellate court's decision also deserves the same respect. See Taylor, 366 F.3d at 999-1000 (discussing its analysis of state appellate and trial court findings).
The California Court of Appeal made several factual findings regarding police coercion, including the following:
During the threats and implications [on March 15, 2000], Souk continued to deny he was in [Nasrichampang's] car during the shooting. He admitted being in the car only after police played a portion of Salavaria's police interview in which Salavaria said Souk was in the car. Souk then told his version of the incident.
On March 16, police arrested Souk and read him the Miranda warnings. After Souk waived his rights, police again interviewed him, and learned that he was in the car for backup and knew there would be a fight. . . .
On June 16, with his counsel present, Souk gave his statement to the district attorney after signing a document recognizing there was not yet a deal.
(Lodgment No. 21, People v. Nasirichampang, No. D038282, slip op. at 8.)
The state court made additional findings to support its conclusions: (1) "[T]he deal Souk made with the prosecution required only that he tell the truth[;]" (2) "Souk did not feel compelled to repeat the story he gave to the police[;]" and (3) "Souk's trial testimony did not conform to the information he gave to police at the first interview on a number of points." (Id. at 10.) Ultimately, the court found that even if there was coercion in the first police interview, Souk's plea agreement was not coercive, and his trial testimony was voluntary — not tainted by any prior coercion. (Id. at 10.) As a result, Petitioner was not deprived of his due process right to a fair trial. (See generally id.)
The factual findings relating to Souk's police interviews, plea agreement, and testimony are presumed correct. Nevertheless, Nasrichampang challenges the court of appeal's conclusions, arguing that Souk's testimony was the product of ongoing coercion and police misconduct, which Petitioner claims is evidenced by Souk's "multiple contradictions in his earlier statements." (Pet'r's Mem. 17-18; Traverse 7-8). He also asserts that Souk's plea agreement was itself coercive. (Pet'r's Mem. 15-17; Traverse 5-7.)
1. Plea Bargain
Souk testified that his agreement only required him to tell the truth. (Lodgment No. 12, Rep.'s Tr. vol. 8, 1097.) The appellate court reasoned that "[a] plea agreement that requires truthful and complete testimony is not coercive." (Lodgment No. 21,People v. Nasirichampang, No. D038282, slip op. at 10 (citingPeople v. Badgett, 10 Cal. 4th 330, 358, 895 P.2d 877, 893, 41 Cal. Rptr. 2d 635. 651-52 (1995)).)
Petitioner claims the court of appeal erred, however, because Souk's plea agreement did not negate the previous police coercion, and the agreement was coercive. (Pet'r's Mem. 15.) Nasrichampang argues that Souk's testimony was coerced because Souk knew if he did not implicate Petitioner he would serve ten years in juvenile prison, but if he did implicate Petitioner, "he could walk away with his freedom." (Id. at 16.) Additionally, Souk's sentencing was set for a date after the trial because Souk could then "`truthfully testify'" that no sentence was guaranteed to him. (Id.) Petitioner asserts that a violation of his due process right occurred because the "sleight of hand practice" of waiting until after his trial to sentence Souk was "tantamount to concealing [from the jury] that a plea bargain ha[d] been struck." (Id. at 15 (citing Giglio v. United States, 405 U.S. 150, 152-53 (1972); Campbell v. Reed, 594 F.2d 4, 7 (4th Cir. 1979)).) Nasrichampang complains that this prevented him from revealing the extent of Souk's bias on cross-examination. (Id.)
Although concealing the terms of a prosecution's promises to a key witness from the jury may state a due process violation,Giglio v. United States, 405 U.S. 150, 153-55 (1972), that did not occur here. Souk's entire plea agreement was read into the record line by line during his direct examination by the prosecution. (Lodgment No. 12, Rep.'s Tr. vol. 8, 1092-1102.) Souk testified that he had agreed to plead guilty to voluntary manslaughter in exchange for being sentenced as a juvenile and that his sentence would be determined three days later. (Id. at 1100-01.) He faced a range of possible sentences — from 240 days in a juvenile "camp" to twelve years in the California Youth Authority. (Id. at 1101, 1114.) Furthermore, Souk was cross-examined at length by counsel for both defendants about his plea agreement and the possible 240-day sentence. (Id. at 1110-17, 1157-59, 1168-69, 1175-78.)
Petitioner claims that although, technically, Souk had not been promised a particular sentence, he was expecting to receive only 240 days in "camp" if he testified favorably to the prosecution. (Pet'r's Mem. 16.) However, this point was made. Counsel for Petitioner told the jury that Souk "doesn't believe that he'll do ten years in the Youth Authority for various reasons, not the least of which has to do with the environment he's staying in right now and real or unreal predictions from other people." (Lodgment No. 14, Rep's Tr. vol. 10, 1581 (Dec. 20, 2000).) Counsel for the codefendant reminded the jury: "I think I asked him [Souk] a question, `Well, isn't the recommendation 240 days in some kind of camp?' And he [Souk] said, `yes.' (Id. at 1570.) "He [Souk] cut a deal, and he's going to walk away from this thing in pretty good shape." (Id. at 1571.)
Nasrichampang claims that "all parties well knew Souk would be set free if he implicated the petitioner. . . ." (Id. at 16.) The jury was told as much. Petitioner's attorney argued, "I would hope that after evaluating the motivation for Souk to tell the story that he did, . . . you would find my client not guilty." (Id. at 1584.)
Petitioner seeks to overturn factual determinations made by the state appellate court. This Court cannot grant the requested relief unless the state court's findings were "not merely wrong, but actually unreasonable." Taylor, 366 F.3d at 999. There is no clear and convincing evidence to rebut the appellate court's factual findings. In addition, the legal conclusion that the plea agreement was not coercive was not contrary to, or an unreasonable application of, clearly established federal law. This aspect of Petitioner's first claim does not warrant habeas relief.
2. Discrepancies Between Interview Statements and Trial Testimony
The appellate court also found Souk's trial testimony was not the product of police coercion because Souk did not "repeat the story he gave to the police[;]" and, in certain respects, his trial testimony was inconsistent with information he had given during the possibly coercive first police interview. (Lodgment No. 21,People v. Nasirichampang, No. D038282, slip op. at 10.) The state court concluded that the testimony Souk gave only at trial, including testimony that Nasirichampang said "shoot him" and that Souk saw a gun at Somchit's house the day of the shooting, showed that Souk did not feel compelled to simply repeat the earlier account of events he had given to police. (Id.) The court held that Souk's trial testimony was not coerced, so there was no due process violation.
Petitioner asserts that the differences between Souk's testimony and interviews cited by the court were insignificant. He also claims the court of appeal misread the evidence and that some of Souk's contradictions "show his intention of helping police and avoiding jail." (Pet'r's Mem. 17.) The contradictions Petitioner points to are: (1) whether Souk saw a gun or heard discussion of a shooting before Somchit pulled the gun out and fired it, and (2) whether he asked Petitioner to let him out of the car. (Id. at 17-18.)
The California Court of Appeal's decision "was [not] based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d)(2). Therefore, this Court will not disturb the court's factual findings regarding Souk's testimony. Furthermore, the conclusion that Souk's testimony was not coerced and its admission did not deprive Petitioner of a fair trial, (Lodgment No. 21, People v. Nasirichampang, D038282, slip op. at 9-10), was not contrary to, or an unreasonable application of, Supreme Court precedent. Petitioner's first claim does not entitle him to habeas corpus relief.
B. Petitioner's Sixth Amendment Claim of Ineffective Assistance of Counsel Does Not Entitle Him to Relief.
In his second claim and its subparts, Nasrichampang argues that he was deprived of the constitutional right to effective assistance of counsel when his trial attorney (1) allowed Petitioner to rely on an invalid defense without a full awareness of the evidence and consequences, (2) failed to argue for a severance, (3) admitted his guilt in her opening statement, and (4) informed the jury that the prosecution's key witness had taken a lie detector test. (Pet. 6.)
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set the federal standard for resolving ineffective assistance of counsel claims. These claims have two prongs that must both be satisfied: First, counsel's performance must have been deficient in that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. Second, "the defendant must show that the deficient performance prejudiced the defense"; in other words, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 687, 694.
The court need not address both prongs if the petitioner alleging ineffective assistance makes an insufficient showing on one. Id. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. "[T]he performance and the prejudice components of the ineffectiveness inquiry are mixed questions of law and fact." Strickland, 466 U.S. at 698; see Lambert v. Blodgett, 393 F.3d at 977. With these guidelines, the Court will turn to Petitioner's assertions of ineffective assistance of counsel.
1. Failure to Present an Alternate Defense
Petitioner claims that his attorney should have presented the defense that Nasrichampang was present at the scene of the shooting but did not know that his brother intended to shoot the victim. (Pet'r's Mem. 18-20; Traverse 8-10.) Instead, she adopted the "implausible" alibi defense that counsel for Petitioner's codefendant brother used, which insisted that neither brother was at the scene. (Id.)
a. Reasonableness of Counsel's Performance
Petitioner argues his attorney never investigated an alternate defense, even though "evidence of the brother's presence at the scene was overwhelming, and the only legitimate legal question in petitioner's case was his state of mind." (Pet'r's Mem. 18).
"[C]ounsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client." Counsel's failure to consider an alternative defense cannot be considered "strategic" where counsel has "failed to conduct even the minimal investigation that would have enabled him to come to an informed decision about what defense to offer. . . ."Phillips v. Woodford, 267 F.3d 966, 978 (9th Cir. 2001) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (emphasis omitted)). Although a client is insisting on a particular course of action, the attorney still has the duty to investigate, so that the client is making an informed and knowing decision. Williams v. Woodford, 384 F.3d at 622.
In her declaration attached to Nasrichampang's petition to the California Court of Appeal, Petitioner's attorney states that she did no independent investigation and did not hire an investigator, but she obtained investigative reports from the codefendant's attorney. (Lodgment No. 18, Petition for Writ of Habeas Corpus Ex. C at 1-2, In re Nasirichampang, No. D039798.)
Nasrichampang claims his attorney only visited him two or three times in prison and did not explain that there may be alternate defenses available to him. (Id. Ex. A at 1.) However, his trial attorney stated that she suggested Petitioner might benefit from a severance from his brother, and his best defense would be a lack of knowledge defense. (Id. Ex. C at 2.) Even if foregoing a lack of knowledge defense was at Petitioner's request, trial counsel's failure to investigate the alternate defense may fall outside an objective standard of reasonableness. Without an investigation, neither counsel nor her client could make an informed decision regarding Petitioner's defense. See Williams, 384 F.3d at 622; see also Phillips, 267 F.3d at 978.
The state court did not address whether this aspect of trial counsel's performance was deficient. (See Lodgment No. 21,People v. Nasirichampang, D038282, slip op. at 35-37.) However, it concluded that Nasrichampang was not prejudiced by his attorney's "failure to put on this alternate defense" or "failure to independently investigate his defense." (Id. at 37.) b. Prejudice
Assuming counsel's performance fell below an objective standard of reasonableness, Petitioner is not entitled to habeas corpus relief unless he can show that "the result of the proceeding would have been different" if his attorney presented the alternate defense or conducted an independent investigation.See Strickland, 466 U.S. at 694. The California Court of Appeal, following Strickland, held that Nasrichampang was not prejudiced by his counsel's performance because California follows the "natural and probable consequences" doctrine. (Lodgment No. 21, People v. Nasirichampang, No. D038282, slip op. at 36 (citing People v. Prettyman, 14 Cal. 4th 248, 261, 926 P.2d 1013, 1020, 58 Cal. Rptr. 2d 827, 834 (1996)).)
Under the natural and probable consequences doctrine, an aider or abettor is guilty not only of the target crime but also of the "`natural and probable consequence' of the target crime that the defendant assisted or encouraged." People v. Prettyman, 14 Cal. 4th 248, 262, 926 P.2d 1013, 1020, 58 Cal. Rptr. 2d 827, 834 (1996). The "target crime" in this case was a fistfight or an assault. (Lodgment No. 21, People v. Nasirichampang, No. D038282, slip op. at 37.)
Petitioner contends he "believed he was headed for a fist fight with the victim and his friends. . . ." (Pet'r's Mem. 20; Traverse 10.) Evidence was presented that Nasrichampang drove his brother to the scene of the shooting after Somchit, with a gun in his waistband, said, "Let's go get those fools." (Lodgment No. 11, Rep.'s Tr. vol. 7, 1025.) There was evidence that Petitioner knew Somchit had a gun. (Lodgment No. 21, People v. Nasirichampang, No. D038282, slip op. at 37.)
In an analogous California case, the state supreme court wrote: "[I]f a person aids and abets only an intended assault, but a murder results, the person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault." People v. McCoy, 25 Cal. 4th 1111, 1117, 24 P.3d 1210, 1213, 108 Cal. Rptr. 2d 188, 192 (2001). This statement of state law appears to resolve Nasrichampang's claim.
Nevertheless, Petitioner challenges the factual finding that he knew of the planned armed assault, arguing that
[t]he only evidence in support of this claim was the testimony of 15 year-old Souk . . . [Souk's] testimony on that point evolved over time. When he initially agreed to help the police, he told them that no one in the car had knowledge of [Somchit's] gun, and they all saw it for the first time when [Somchit] exited the car, withdrew the concealed weapon and began firing at the victim.
(Pet'r's Mem. 21 (citing Lodgment No. 3, Req. Augmentation Attach. (Interrogation Tr.) 86-87); Traverse 11.)
Souk's credibility, however, was an issue for the jury. See Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir. 1998) (quotingMarshall v. Lonberg, 459 U.S. 422, 434 (1983)). Counsel for Petitioner's brother cross-examined Souk first, and he questioned him regarding his conflicting statements, including when Souk first saw the gun and whether his view was obstructed. (Lodgment No. 12, Rep.'s Tr. Vol. 8, 1132-37.) Petitioner's counsel had ample opportunity to cross-examine Souk about his contradictory prior statements. (See Lodgment No. 6, Rep.'s Tr. vol. 2, 47 (evidencing Nasrichampang's attorney had a copy of Souk's interrogation transcript); Lodgment No. 12, Rep.'s Tr. vol. 8, 1170 (showing Petitioner's attorney cross-examined Souk)).
At trial, the jury was instructed on the definition of aiding and abetting under California law pursuant to CALJIC No. 3.01. (Lodgment No. 1, Clerk's Tr. 175-76.) However, CALJIC No. 3.02, the jury instruction which explains the natural and probable consequences doctrine, was not given. (See id. at 143-209.) That instruction provides:
One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and probable consequences of any criminal act that he knowingly and intentionally aided and abetted. You must determine whether the defendant is guilty of the crime originally contemplated and, if so, whether the crimes charged . . . were a natural and probable consequence of such originally contemplated crime.Spivey v. Rocha, 194 F.3d 971, 976-77 (9th Cir. 1999) (quoting CALJIC No. 3.02)).
Before the jury was instructed, the prosecutor asked to withdraw CALJIC 3.02 from the instructions he requested. (Lodgment No. 14, Rep.'s Tr. vol. 10, 1479, Dec. 20, 2000.) He added: "However, again, I think that's subject to Miss Digennaro's decision on the theory of her defense." (Id. at 1480.) Petitioner's counsel replied: "I agree that 3.02 may be withdrawn." (Id.) The prosecutor was prepared to argue that Petitioner was guilty of the murder of Ziebart under the natural and probable consequences doctrine. (Lodgment No. 13, Rep.'s Tr. vol. 9, 1475, Dec. 19, 2000.)
In convicting Petitioner, the jury determined that Souk's testimony was credible. Additionally, the California Court of Appeal held that if counsel argued Petitioner did not know that his brother intended to murder Ziebart, the natural and probable consequences doctrine would have resulted in Petitioner's conviction. (Lodgment No. 21, People v. Nasirichampang, No. D038282, slip op. at 36-37.)
This Court would have to hold that both the jury and the state appellate court made "an unreasonable determination of the facts" to conclude that Souk's testimony should not have been believed. See 28 U.S.C. § 2254(d)(2). Therefore, assuming Petitioner's attorney had presented the alternate defense theory, the outcome at trial would have been the same. Consequently, this subpart of his ineffective assistance of counsel does not entitle him to relief.
2. Failure to Argue for a Severance a. Reasonableness of Counsel's Performance
Petitioner claims that if his attorney argued to sever his case from Somchit's, he would not have been burdened with his brother's implausible alibi defense. (Pet'r's Mem. 21; Traverse 11.) Trial counsel's failure to argue for a severance of Petitioner's case may fall below an objective standard of reasonableness. Without an investigation of defenses, neither trial counsel nor Nasrichampang could make a knowing and informed decision whether to seek to sever Petitioner's case. See Williams, 384 F.3d at 622; see also Phillips, 267 F. 3d at 978 (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994)). However, Petitioner's claim misstates the facts.
Here, Somchit filed a motion that he be tried separately from the two other defendants in the case. (Lodgment No. 1, Clerk's Tr. 35.) By the time the motion was argued, the only defendants remaining were Somchit and Petitioner. (Compare id. at 80-88,with Lodgment No. 6, Rep.'s Tr. vol. 2, 83.) Petitioner's counsel joined in the motion filed by his brother. (Lodgment No. 6, Rep's Tr. vol. 2, 21.)
The motion to sever asserted that defendants had antagonistic defenses. (Lodgment No. 1, Clerk's Tr. 42-43.) Nevertheless, the trial court denied the requested severance. (Id. at 84.) There is no basis to conclude that counsel's failure to "argue" for a severance, after joining in the codefendant's motion, was deficient representation.
b. Prejudice
Nasrichampang's claim that he was prejudiced by his attorney's failure to argue for a separate trial from his brother (Pet'r's Mem. 21; Traverse 11) fails because there is no reasonable probability that the result of the proceeding would have been different. Petitioner has shown neither that he would have been granted a severance, especially in light of the trial judge's, ruling, nor a reasonable probability that the result of his trial would have been different if he were tried separately. See McQueen v. Scroggy, 99 F.3d 1302, 1316 (6th Cir. 1996) (finding no prejudice from decision not to seek a separate trial "since it is clear that any such motion would have been denied");Collier v. United States, 92 F. Supp. 2d 99, 105 (D.P.R. 2000) ("[B]ecause a motion for a severance would have been unsuccessful, Petitioner's claim of ineffective assistance of counsel on that ground must fail.")
Petitioner argues that "he was burdened with [his brother]'s implausible alibi story" and that he could not present his alternate defense. (Pet'r's Mem. 21.) As discussed above, Nasrichampang's alternate defense would have not changed the outcome of the case. Souk still would have been called as a witness and would have presented the same testimony. There is no reasonable probability that Petitioner would not have been convicted under the natural and probable consequences doctrine.
3. Proclaiming Petitioner was "Liable for Murder" in Her Opening Statement
In her opening statement, Petitioner's attorney stated, "[T]here are four people, not two — only two are in this courtroom, but there are four people who are liable for murder in this case: Souk and Cesar, as well as Samchit [sic] and [Nasrichampang]." (Lodgment No. 7, Rep.'s Tr. vol. 3, 125.) Petitioner argues that this statement was an admission of guilt.
a. Reasonableness of Counsel's Performance
No specific set of rules governs which actions are objectively reasonable and which are not. Strickland, 466 U.S. 688-89. "Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." Id. at 689. However, an attorney's admission of his client's guilt to the jury can rise to the level of a breakdown of the adversarial process, justifying a presumption of prejudice. United States v. Cronic, 466 U.S. 648, 659 (1984).
Taken in context with the remainder of trial counsel's opening statement, the court of appeal found "counsel's statement that Souk, Salavaria, Somchit and [Petitioner] are all liable for murder merely conveyed that all four were charged with murder." (Lodgment No. 21, People v. Nasirichampang, No. D038282, slip op. at 39.) The statement was meant to inform the jury that four people were charged with murder and that any of the others charged should not be trusted. (See id.)
The court of appeal's interpretation of trial counsel's remarks was objectively reasonable. Counsel's statement was not as inculpatory as Petitioner suggests. See, e.g., United States v. Williamson, 53 F.3d 1500, 1511 (10th Cir. 1995) (holding that counsel's argument that his client might have purchased and used illegal drugs was not a concession of guilt on a drug conspiracy charge) (cataloging cases where counsel's statement was a concession of guilt).
For example, this is unlike United States v. Swanson, 943 F.2d 1070, 1074 (9th Cir. 1991). There, the defendant was charged with bank robbery. Id. at 1071. Defense counsel conceded in his closing argument "that there was no reasonable doubt concerning the element of intimidation, and whether Swanson was the perpetrator of the bank robbery. . . ." Id. at 1074. The concession tainted the integrity of the trial. Id. "[Defense counsel] told the jury that no reasonable doubt existed as to his client's identity as the perpetrator of the only crime charged in the indictment." Id. at 1076. Prejudice was presumed, and ineffective assistance was established. Id. at 1075-76.
The contrast between Nasrichampang's claim and Swanson is stark. Here, as interpreted by the state court, counsel's opening was neither deficient nor a concession of guilt.
b. Prejudice
Nasrichampang suffered no prejudice as a result of his attorney's actions. The jury was instructed that statements of counsel are not evidence. (Lodgment No. 1, Clerk's Tr. 146.) Morever, there must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."Strickland, 466 U.S. at 694. Counsel's statement does not "undermine confidence in the outcome." See id.
There is ample evidence to support the conviction. Several witnesses placed Nasrichampang's white Acura Integra at the scene of the shooting. (Lodgment No. 9, Rep.'s Tr. vol. 5, 657-58; Lodgment No. 10, Rep.'s Tr. vol. 6, 850, 857; Lodgment No. 11, Rep.'s Tr. vol. 7, 879, 898, 1021.) Souk testified that after Somchit told Petitioner that Somchit's car had been vandalized by "the guy he was going to get in a fight with at Sycuan," Somchit said, "Let's go get these fools." (Lodgment No. 11, Rep's Tr. vol. 7, 1025.) Petitioner then drove his brother to National City to look for the vandals. (Id.) Furthermore, Somchit had a gun visible in his waistband. (Id. at 1025-26.) There is no reasonable probability that the result would have been different if counsel had not made the careless comment.
4. Mentioning Lie Detector Test in Opening Statement
In her opening, Petitioner's attorney also referred to the police having a voice stress analyzer when they interviewed Souk. (Lodgment No. 7, Rep.'s Tr. vol. 3, 126.) She said:
Souk — Souk's story reminds me of — creative writing class, where a student might write their [sic] first version, turn it in to the instructor. The instructor says, "I don't like this one. . . ." [The instructor] tells Souk that they have a voice stress analyzer that will permit them, the police, to tell whether he's telling the truth. . . . We're not talking about an adult who may or may not have read about polygraphs and voice stress analyzers and know whether they are admissible or not.
(Id. at 125-26 (emphasis added).)
a. Reasonableness of Counsel's Performance
The California Court of Appeal appears to have assumed that the attorney's reference to a voice stress analyzer was deficient performance in light of California Evidence Code section 351.1. The statute prohibits "`any reference to an offer to take, failure to take, or taking of a polygraph examination.'" (Lodgment No. 21, People v. Nasirichampang, No. D038282, slip op. at 39 (quoting Cal. Evid. Code § 351.1 (West 1995)).)
b. Prejudice
The court of appeal found that the statement did not prejudice Nasrichampang. (Id.) It reasoned that because counsel never stated whether Souk actually took the test, the mere mention of a voice stress analyzer was not prejudicial. (Id.) Furthermore, the evidence weighed heavily against Nasrichampang, and Souk was not the only witness who tied Petitioner to the murder. (Id.) If trial counsel's remarks were objectively unreasonable, the outcome of the trial would have been no different.
In Nasrichampang's case, the state court decision was neither contrary to, nor an unreasonable application of, clearly established federal law. The California Court of Appeal appliedStrickland, and Petitioner's claim fails the second prong. (See Lodgment No. 21, People v. Nasirichampang, No. D038282, slip op. at 35-40.) There was no prejudice to Nasrichampang as a result of his attorney's actions. His ineffective assistance of counsel claim does not entitle him to relief.
V. CONCLUSION
For the reasons set forth above, Nasrichampang's Petition for Writ of Habeas Corpus should be DENIED.This Report and Recommendation will be submitted to the United States District Court judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections with the Court and serve a copy on all parties on or before March 31, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before April 14, 2006. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).