No. C 98-4060 CRB (PR)
December 28, 2001
This matter is now before the court for consideration of the merits of petitioner C.L. Robinson's pro se petition for a writ of habeas corpus concerning his 1996 conviction in the Contra Costa County Superior Court. For the reasons discussed below, the petition will be denied.
I Procedural Background
Petitioner was convicted by a jury in Contra Costa County Superior Court of assault with a deadly weapon, discharging a firearm in a grossly negligent manner, and possession of a firearm by a felon. On August 9, 1996, he was sentenced to thirteen years in state prison. Petitioner appealed his conviction and filed a concurrent petition for a writ of habeas corpus with the California Court of Appeal, which affirmed the conviction and denied the habeas petition. Petitioner then filed a petition for review with the California Supreme Court along with a petition for a writ of habeas corpus, both of which were denied on January 14, 1998. Petitioner subsequently filed another habeas petition with the California Supreme Court on March 2, 2000, which was summarily denied without citation or comment on June 2, 2000.
The court granted a new trial on the possession charge, and petitioner was found not guilty.
Petitioner filed his original habeas petition in this court on October 22, 1998. The court subsequently dismissed the petition without prejudice on March 25, 1999, when petitioner failed to respond to the court's order to amend. In March 2000, the court determined that petitioner never received any of the court's orders due to a clerical error. The court vacated the prior order of dismissal and granted petitioner until April 28, 2000, to amend his petition. On April 27, 2000, petitioner filed a first amended petition stating that some of the claims presented therein were unexhausted and pending in a state habeas petition before the California Supreme Court. The court dismissed the first amended petition and granted petitioner the opportunity either to resubmit the petition alleging only exhausted claims, or to exhaust the remaining claims in state court before filing a second amended petition.
On June 8, 2000, petitioner filed a motion to withdraw the first amended petition so as to exhaust his remaining claims in state court. On June 12, 2000, prior to this court's review of the motion to withdraw, petitioner asked the court to "disregard" the request for dismissal, stating that his state habeas petition had been denied by the California Supreme Court on June 2, 2000, and requested leave to file a second amended petition containing all exhausted claims. The court granted petitioner leave to file his second amended petition and respondent moved to dismiss the petition as untimely. On November 13, 2000, this court denied the motion to dismiss and directed respondent to file (1) an answer addressing the merits of those claims which were exhausted when petitioner filed his original habeas corpus petition on October 22, 1998, and (2) a motion to dismiss any claims which were not exhausted when the original petition was filed. In light of new developments in Ninth Circuit case law, this court subsequently denied the motion to dismiss the previously unexhausted claims, and directed respondent to file a supplemental answer addressing the merits of those claims. Respondent has done so. Petitioner, who was granted the opportunity to file a supplemental traverse, has informed the court that he chooses not to do so. Accordingly, this petition is now submitted and ready for review on the merits of petitioner's claims.
II Statement of Facts
The statement of facts is taken from the opinion of the California Court of Appeal ("Opinion"):
Robinson's conviction resulted from a shooting incident involving Robinson and Rashawnda Reed. Richmond Police Officer George Newton testified that he first learned of the shooting on January 16, 1996, when he was called to Dorothy McCray's (Dorothy) house to investigate a report of a shooting into an inhabited dwelling. Although two windows were broken, Officer Newton did not find any indication that the windows were broken by gunshots. Reed told Newton that, on January 15, Robinson came to Dorothy's house to talk to Reed. Reed said that she and Robinson took a walk, during which Robinson told Reed that he was upset that Reed had taken his daughter to see a recent shooting victim at the hospital. Reed described Robinson as irrational. Reed said that when she and Robinson were at the corner of Sanford and Filbert, Robinson pointed a small black revolver in her direction. Robinson then pointed the revolver at her feet, pulled the trigger and discharged one shot. Reed told Newton that she felt something hit her left ankle and thought that the bullet may have ricocheted. Around the same time the shot was fired, Linda McCray (Linda) walked up to Reed and Robinson on the corner of Filbert and Sanford. Reed said she feared that Robinson would shoot her again, so she fled back Dorothy's house with Linda behind her. When Reed reached Dorothy's house, Robinson was outside but still had a gun in his hand. Reed told Newton that Robinson then fired another shot at the ground, though this time the shot did not hit her.
Officer Newton testified that except for a red mark on Reed's ankle, he found no other evidence of shots being fired at either Dorothy's house or at the corner of Filbert and Sanford. However, Newton commented that not finding such evidence was common. Newton also testified that Reed never mentioned to him either that she thought Robinson's gun might have been a toy gun or that she and Robinson had discussed money that she owed him on January 15. In addition, Newton testified that it was common for citizens of North Richmond to avoid getting involved in police investigations of shooting incidents and to refuse to cooperate with the police. Newton also testified that people in North Richmond often will not come to court.
Reed's testimony at trial was somewhat confused, and contradicted much of what she had told Officer Newton the day after the incident. Reed testified that on January 15 Robinson was in an "all right mood" and came over to Dorothy's house to talk to Reed. She and Robinson took a walk during which Robinson asked Reed to pay him back the twenty dollars that she had owed him for a week. Reed told him that she did not have the money. During Reed and Robinson's walk, Reed testified that she was not looking at Robinson because she was trying not to pay attention to what he was saying. At some point during the walk, Robinson pulled out a gun. Reed heard a little pop noise, which sounded like a toy gun, and assumed that the noise had come from Robinson, because he was the only other person she saw in the area. However, she testified that she did not see a gun in Robinson's hands. Reed testified that she was not scared of Robinson because if Robinson had wanted to shoot her he would have. At about this time, Linda approached Reed and Robinson. Reed and Linda then headed back to Dorothy's house, but stopped to buy beer at the liquor store next to Dorothy's house. When they left the store, Reed saw Robinson standing outside. Reed testified that she and Linda were not panicking, but that they did try to get in to Dorothy's house quickly. At this time, there was a second shot which Reed thought had ricocheted and hit her in the leg. However, Reed testified that she realized a moment later that it was actually Dorothy's gate that hit her. Reed testified that she could not see if Robinson had a gun in his hand because her back was to him.
Several times during Reed's testimony in the prosecution case, she testified that the incident between herself and Robinson was not serious and that Robinson was not trying to hurt her. Reed testified that she did not call the police and that she did not want to send Robinson to jail or press charges against him.
Linda testified that Robinson and Reed were acting "like normal" when she approached them on the corner of Filbert and Sanford on January 15, 1996. She also testified that she heard several gun shots when she was about two blocks away from Reed and Robinson but that she did not hear any gun shots between the time she and Reed left the liquor store and the time they entered Dorothy's house. Finally, Linda testified that she did not know from what direction the gun shots she heard had come.
Dorothy testified that she did not see or hear anything concerning the incident between Robinson and Reed on January 15.
When the prosecution closed its case, defense counsel recalled Reed as Robinson's only witness. During defense counsel's direct examination of Reed, she testified that: she had been distracted on January 15 because she had been upset with her boyfriend; she had told Officer Newton that she had assumed Robinson had a gun; she had not been threatened about coming to court; and Robinson was "just like my family." During cross examination of Reed, the following exchange occurred after the prosecution had established that "snitches" are punished in North Richmond: "Q: And you are not going to be [a snitch], are you? A: Huh-uh. There ain't nothing to snitch On. Q: Because C.L. Robinson is like your family, right? A: Yes."
"Robinson" is substituted for the California Court of Appeal's references to "Appellant."
Unless otherwise noted, all subsequent dates are in 1996.
* * *
On April 5, the jury found Robinson guilty of: (1) assault with a deadly weapon, with an enhancement for personal use of a handgun; (2) discharging a firearm in a grossly negligent manner; and (3) possession of a firearm by a felon. On July 26, the court granted Robinson's motion for a new trial as to count three (possession of a firearm by a felon) on the grounds that Robinson never personally waived his right to trial on proof of the prior felony. In the retrial, where the evidence presented was similar to the evidence in the first trial, the jury found Robinson not guilty of the third count.
Opinion at 2-4, 6.
I 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 petition 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." 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362 (2000).
II Legal Claims
Petitioner raises six claims: (1) denial of his constitutional right to an impartial jury; (2) denial of equal protection and due process due to the trial court's failure to inquire into racial bias on the part of the jurors; (3) constitutionally insufficient evidence to support the jury's findings of guilt on counts one and two; (4) abuse of discretion by the trial court in denying petitioner's motion for a new trial; (5) denial of effective assistance of trial counsel; and (6) denial of effective assistance of counsel on appeal.
A. Juror Removal Claim
After all of the evidence was presented, but before the instructions were given to the jury, Juror 6 sent a note to the judge requesting to be excused from the case. Juror 6's note stated that she wished to be excused for three reasons: (1) she was concerned for her safety after the trial; (2) one of the jurors stated during voir dire that she was raised by a very prejudiced father; (3) she was the only African American on the jury. The judge asked counsel for suggestions about how to handle the issue raised by this note.
Pursuant to the prosecution's suggestions, the judge called Juror 6 into chambers to discuss her concerns. Juror 6 stated that her concern about her safety after trial would interfere with her deliberations, would affect the way she deliberated, and would affect the decision she would reach. Although the judge informed Juror 6 that juror information is kept confidential, Juror 6 said that she still could, by chance, run across people involved in the trial. Regarding the juror raised by the racist father, Juror 6 acknowledged that the juror had been very friendly to her during recess, but Juror 6 still did not feel comfortable serving on the jury with her. Juror 6 expressed skepticism that the juror with the racist father could "come to the conclusion within maybe an hour or half-an-hour, to say she been redeemed, that she can judge this case . . . be fair and impartial to the case." Regarding her concern about being the only African American juror, Juror 6 stated that she felt singled out and like a pawn who was chosen to serve because it was assumed that since she was an African American, she would vote to acquit petitioner, who was also African American. Juror 6 stated that she was afraid and did not want to be a part of the case.
The judge then discussed Juror 6's situation with counsel. The prosecution stated that Juror 6 appeared scared to render a verdict against petitioner, especially because the witnesses seemed to want an acquittal. Defense counsel argued that Juror 6 was trying to take the easy way out and that just because Juror 6 was uncomfortable with the case did not mean that she was unable to do the job. In response, the judge noted that Juror 6's comments could be interpreted as saying that she would render a not guilty verdict in order to allay her fears, especially considering the testimony in the case about what happens to "snitches" in North Richmond. However, the judge acknowledged defense counsel's concern and recalled the juror to further inquire whether her concerns would render her unable to serve as a juror.
When Juror 6 returned, the judge again explained to her a juror's duties. Juror 6 stated that, because she felt pressure, it would be difficult for her to disregard her concerns, to be fair and impartial to both sides, and to reach a decision based only on the law and the facts. Based on Juror 6's responses and demeanor during the questioning, the judge concluded that Juror 6's extraneous considerations would influence her decision-making process and would prevent her from deciding the case based on the law and facts. The judge then granted the prosecution's motion to excuse Juror 6 for cause, over petitioner's objection, and seated an alternate juror. The judge denied petitioner's motion for mistrial.
Petitioner contends that the dismissal of Juror 6 was a denial of his federal constitutional right to an impartial jury because there was no factual basis for the court's finding that the juror feared for her safety.
California Penal Code § 1089 provides for the discharge and substitution of jurors:
If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty, or if a juror requests a discharge and good cause appears therefor, the court may order him to be discharged and draw the name of an alternate, who shall then take his place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors.
Cal. Penal Code § 1089. This procedure, followed by the trial court here, preserves the "essential feature" of the jury required by the Sixth and Fourteenth Amendments. See Miller v. Stagner, 757 F.2d 988, 995 (9th Cir.), amended, 768 F.2d 1090 (9th Cir. 1985). This court therefore need only decide whether § 1089's application in the circumstances of this case violated petitioner's Sixth Amendment rights. See Perez v. Marshall, 119 F.3d 1422, 1426 (9th Cir. 1997), cert denied, 522 U.S. 1096 (1998); see also Thomas v. Clark, 2000 WL 335611, *3 (N.D.Cal. Legge, J.); Buffkins v. Henry, 1999 WL 354511, *5 (N.D.Cal. Breyer, J.); Barnett v. Mayle, 1999 WL 319218, *3 (N.D.Cal. Walker, J.). Specifically, did good cause exist in this case for the trial court to excuse Juror 6?
The California Court of Appeal concluded that the trial court did not abuse its discretion when it removed Juror 6:
In the instant case, the trial court did not abuse its discretion by ending the inquiry into Juror 6's concerns when it did. The trial court questioned Juror 6 extensively on two separate occasions during which Juror 6 repeatedly stated that it would be difficult for her to perform her duties as a juror. Further inquiry into the factual basis for Juror 6's fear for her safety after the trial would not have changed the fact that this fear prevented her from objectively judging the case.
The trial court's inquiry also established as a demonstrable reality that Juror 6 would be unable to perform her juror duties. The court concluded that Juror 6's answers and her demeanor indicated that she could not be fair and impartial and that extraneous concerns would prevent her from rendering a decision based on the law and facts. Juror 6's responses alone provided sufficient evidence from which the court could conclude that Juror 6's concern for her safety after trial would prevent her from performing her juror duties. However, in addition, the trial court's observation of the juror's demeanor is also an important factor in reviewing a court's decision to discharge a juror. [Citations omitted.] Because Juror 6's responses and her demeanor indicated that she would be unable to fulfill her juror duties, the trial court did not abuse its discretion in excusing Juror 6.
Opinion at 8.
This conclusion will be disturbed by a federal court only if it is an unreasonable application of Supreme Court precedent or is based on an unreasonable determination of the facts as presented in the state court proceeding. See Furman v. Wood, 169 F.3d 1230, 1234 (9th Cir. 1999) (citing 28 U.S.C. § 2254(d)). This court concludes that it is neither. The state court's determination that good cause existed for the removal of Juror 6 is well supported by the record and was not unreasonable. Accord Perez, 119 F.3d at 1428.
That the trial court knew that Juror 6 might be inclined to vote for acquittal does not call into doubt its decision to excuse her from jury service. A trial court's decision to remove a juror for cause, even where the court knows that the removed juror is holding out for acquittal, will be upheld as long as the record shows that the trial court did not abuse its discretion by a desire to have an unanimous guilty verdict. See id. at 1427. The record here shows that the trial court was forced to act to discharge Juror 6 not because of Juror 6's doubts about the sufficiency and credibility of the evidence, but because of her inability to perform the "essential function of a juror-deliberation." Id. Petitioner is not entitled to federal habeas relief on this claim.
B. Juror Bias Claim
Petitioner alleges that after hearing Juror 6's comments about the juror raised by a racist father, and based on the close timing of the O.J. Simpson trial to petitioner's trial, the trial court erred in failing to inquire sua sponte as to evidence of racial bias of the other jurors. The California Court of Appeal rejected this argument:
Appellant's argument is unpersuasive. Defense counsel never requested such an inquiry of the other jurors during the case. In fact, after Juror 6 submitted her note with the three reasons that she wished to be excused, defense counsel stated that the only area concerning which Juror 6 needed to be questioned was her anxiety about her post-trial safety. Defense counsel did not err in his failure to request such an inquiry of the other jurors because no evidence indicated that the jury had a problem with race relations. The record contained no reference whatsoever to the O.J. Simpson trial. Any argument that racial bias of the other jurors should be inferred based solely on the fact that the O.J. Simpson trial occurred around the same time as the instant case is completely baseless. In addition, there was no evidence at all that the other jurors were behaving in a racist manner towards Juror 6. In fact, Juror 6 stated that the juror who claimed that she had been raised by a racist father had been very friendly to her during recesses. Because no evidence in the record indicates that the other jurors had a problem with race relations, it was not an abuse of discretion for the court to not question the other jurors.
Opinion at 9.
The Sixth Amendment guarantees a defendant the right to "`a tribunal both impartial and mentally competent to afford a hearing.'" Tanner v. United States, 483 U.S. 107, 125-27 (1987) (internal citation omitted). A defendant's interests in an unimpaired jury are protected by several aspects of the trial process: the suitability of an individual for the responsibility of jury service is examined during voir dire; during the trial the jury is observable the court, by counsel and by court personnel; jurors are observable by each other and may report inappropriate juror behavior to the court before they render a verdict; and after the trial a party may seek to impeach the verdict by non-juror evidence of misconduct. Id. Normal jury pressures and intra-jury influences constitute no grounds for overturning a verdict. United States v. Tierney, 947 F.2d 854, 869 (8th Cir. 1991). Moreover, "long-recognized and very substantial concerns support the protection of jury deliberations from intrusive inquiry." Tanner, 483 U.S. at 127. Federal Rule of Evidence 606(b) and California Evidence Code section 1150(a), for example, prohibit the use of juror testimony to impeach a verdict when that testimony relates to intrinsic matters. See id. at 116-27 (discussing F.R.E. 606(b)); People v. Cox, 53 Cal.3d 618, 695-96 (1991) (discussing Cal. Evid. Code § 1150(a)).
Petitioner's speculation that the jurors were improperly influenced by the proximity in time of the O.J. Simpson trial to his trial is wholly unsupported. As the California Court of Appeal found, there is no reference whatsoever in the record to the O.J. Simpson trial, and no statements were made by Juror 6, or any other juror, to indicate otherwise. Similarly, the record rebuts the suggestion that the juror raised by a racist father influenced the verdict. The juror was subjected to the rigors of voir dire (during which she disclosed her father's views), and neither the court, counsel, court personnel, nor other jurors reported inappropriate behavior by the juror. Juror 6's personal discomfort with the juror's history did not compel the trial court to investigate the possibility of juror bias. Accordingly, petitioner is not entitled to habeas corpus relief on this claim.
C. Insufficient Evidence Claim
Petitioner alleges that the evidence was insufficient to sustain the convictions of assault with a deadly weapon (count one) and discharging a firearm in a grossly negligent manner (count two). He claims the evidence was insufficient because there were differences in the testimony of the investigating officer and the victim, and there was no corroborating physical or testimonial evidence that a gun had been fired.
The conviction was based on the testimony of Officer Newton, the police officer who investigated the incident the following day, and the victim, Rashawnda Reed. Officer Newton testified that during the investigation, Reed informed him that while she was talking to petitioner on the sidewalk petitioner, who was irrational and upset, produced a small black revolver in his right hand, pointed it at her feet, and fired it. She felt a "ricochet or something" strike her ankle. Frightened, she fled back to Dorothy McCray's house, where petitioner fired another shot into the ground. At trial, Reed testified that petitioner, who was in a bad mood because of the twenty dollars she owed him, pulled out a gun, but she did not see a gun in his hand. She heard a popping noise like a toy guy. When she returned to the house, she heard the gun again as she approached the door and felt something hit her leg. While she at first thought it was a bullet which had ricocheted, she decided it had been the front gate to the house.
Respondent argues that the only significant difference between the testimony of Reed and Officer Newton is the actual observation of a gun in petitioner's hand.
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970); see Leavitt v. Vasquez, 875 F.2d 260, 261 (9th Cir.) (state must prove every element of crime beyond a reasonable doubt), cert. denied, 493 U.S. 866 (1989). A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see id. at 324.
A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993). The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319). The "prosecution need not affirmatively `rule out every hypothesis except that of guilt,'" and the reviewing federal court "`faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326). The existence of some small doubt based on an unsupported yet unrebutted hypothesis of innocence therefore is not sufficient to invalidate an otherwise legitimate conviction. See Taylor v. Stainer, 31 F.3d 907, 910 (9th Cir. 1994) (three hypotheses regarding petitioner's fingerprints which government failed to rebut unsupported by evidence and therefore insufficient to invalidate conviction).
The evidence in this case was adequate to support the conviction under this standard. First, under California Evidence Code § 411, the direct evidence of one witness is sufficient to establish a fact. Even though Reed's testimony at trial was not as strong as the statements she made to Officer Newton the day after the incident, it supported the jury's finding that petitioner shot at her with a gun. Moreover, Reed's prior inconsistent statement was admissible as an exception to the California hearsay rule, California Evidence Code § 1235, and could be considered by the jury. The state court's denial of petitioner's claim was not an unreasonable application of Jackson v. Virginia. Cf. Mitchell v. Prunty, 107 F.3d 1337, 1339 n. 3 (9th Cir.), cert. denied, 522 U.S. 913 (1997), overruled in part on other grounds, Santamaria v. Horsley, 133 F.3d 1242 (9th Cir. 1998) (en banc) (under 28 U.S.C. § 2254(d) it is not reasonable for the state court to affirm a conviction based on testimony that is clearly rejected by the verdict). This claim for federal habeas corpus relief is therefore denied.
D. New Trial Claim
Following the jury's finding of guilt, petitioner filed a motion for a new trial. The basis for the new motion was the failure of the trial court or counsel to advise petitioner of his constitutional rights regarding the proof of his prior conviction, or to obtain from petitioner an explicit waiver of those rights as required by Boykin v. Alabama, 395 U.S. 238 (1969) and In re Tahl, 1 Cal.3d 122 (1969). The trial court granted the motion as to count three (possession of a firearm by a felon), but denied the motion as to counts one (assault with a deadly weapon) and two (discharging a firearm in a grossly negligent manner). In denying the motion as to the latter two counts, the court ruled:
The court does not believe, however, that the error committed with respect to Count Three vitiates in any manner or form the convictions rendered with respect to Count One, violation of Penal Code section 245(a)(2), or Count Two, violation of Penal Code section 246.3. Again, the Court fails to see how the error with respect to Count Three could have in any way adversely impacted or prejudiced the defendant with respect to Counts One and Two. Had the defendant not stipulated to being a felon the People would have introduced evidence as it would have had a right to do and, in fact, would have been obliged to, to prove Count Three. Evidence that, in fact, Mr. Robinson was a felon. So, either way, it would come to the attention of the jury that Mr. Robinson was a felon. [¶] And, of course, his being a felon is not an element of the crime of Penal Code section 245(a)(2) or of the crime of Penal Code section 246.3. RT [7/26] 687.
The long and short of it is, although there is error as to Count Three that requires reversal of Count Three, it is — the admission of the evidence pursuant to the request of defendant's counsel for purposes of Count Three is harmless, in so far as it related to Counts One and Two, since evidence of being a felon would come in, in any event. RT [7/26] 688.
Petitioner argues that the court abused its discretion in denying the motion as to counts one and two because, as demonstrated in the second trial in which the jury found him not guilty on the possession by a felon charge, the evidence was insufficient in both trials, and because of the "apparent jury bias raised by juror 6, the only African-American on the jury, who requested to be excused because she felt singled out and like a pawn who was chosen to serve because she and petitioner were both African-American, and racial bias among other jurors." Petition at 6, 6E.
A person in custody pursuant to the judgment of a state court can obtain a federal writ of habeas corpus 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). In other words, a writ of habeas corpus is available "only on the basis of some transgression of federal law binding on the state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)), cert. denied, 478 U.S. 1021 (1986). It is unavailable for violations of state law or for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Engle, 456 U.S. at 119; Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994). And it is unavailable merely because "something in the state proceedings was contrary to general notions of fairness or violated some federal procedural right unless the Constitution or other federal law specifically protects against the alleged unfairness or guarantees the procedural right in state court." Middleton, 768 F.2d at 1085.
A state court's procedural or evidentiary ruling may be subject to federal habeas review if it violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991); Middleton, 768 F.2d at 1085. A federal court can disturb on due process grounds a state court's procedural or evidentiary ruling only if the ruling was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Walters v. Maass 45 F.3d 1355, 1357 (9th Cir. 1995); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.) cert. denied, 479 U.S. 839 (1986).
In the present case, the trial court's denial of the motion for new trial did not result in constitutional error. First, as found by the trial court, the failure to inform petitioner of his Boykin/Tahl rights regarding his prior conviction did not adversely impact or prejudice him with respect to the trial of counts one and two. Moreover, as discussed above, the evidence was constitutionally sufficient to find petitioner guilty on those counts. The fact that the second jury found petitioner not guilty of count three does not impugn the constitutional validity of the first jury's findings on counts one and two. Finally, petitioner's juror bias claim is without merit, as discussed above. Accordingly, habeas corpus relief is denied on this claim.
E. Ineffective Assistance of Counsel
Petitioner alleges that his trial counsel was ineffective because counsel elicited from the victim, Rashawnda Reed, that she was a friend of petitioner. He alleges that this information introduced the issue of bias into the trial, and strengthened the prosecutor's argument that Reed changed her story at trial to protect petitioner and had lied to Officer Newton in her story to him about the offense. In his habeas petition to the California Court of Appeal, petitioner argued that the verdict of not guilty in the second trial on the weapons charge substantiated his claim that counsel was ineffective. The California Court of Appeal held that it need not decide if defense counsel's performance was deficient, because there was no reasonable probability of a different result had counsel not introduced the evidence of the friendship. The Court of Appeal found:
Contrary to appellant's contention that this bias evidence was the only evidence from which the jury could have concluded that Reed's story to Officer Newton was more believable than her trial testimony, there was ample other evidence presented to support that conclusion. First, it was clear from Reed's prosecution case testimony that Reed did not want the appellant convicted. Several times during her testimony in the prosecution case, she testified that the incident between herself and appellant was not serious, that she did not call the police, that she did not want to press charges against appellant, and that she did not want to send appellant to jail. Second, Officer Newton's testimony during the prosecution case that people in North Richmond commonly avoid getting involved in police investigations of shootings and often refuse to come to court also provided evidence from which the jury could conclude that Reed told the truth during her conversation with Officer Newton, but later changed her story because she did not want to bring the incident to court.
Appellant contends, however, that prejudice is readily apparent, because the retrial provides an example of what might have happened if defense counsel had not introduced impeachment information. Appellant is mistaken Appellant's argument hinges upon his conclusion that the retrial in which appellant was found not guilty of the third count presented the same testimony as the first trial, absent the impeachment information. Information about Reed and appellant's friendship, however, was before the jury in the second trial as well. In the second trial, Reed described the appellant as a "friend" whom she had known all her life. Although Reed's use of the term "like my family" in the first trial may have indicated a closer friendship than the use of the term "friend" in the second trial, this slight semantic difference alone cannot account for the different results in the two trials. A more likely explanation is that the two juries simply weighed witness credibility differently.
Appellant has not met his burden of proving that his counsel's ineffective assistance, if any, prejudiced his conviction. We, accordingly, deny his petition.
Opinion at 11-12.
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. See id. First, the defendant must show that counsel's representation fell below an objective standard of reasonableness. See id. at 688. Second, the defendant must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. See id. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as the result of the alleged deficiencies. See id. at 697; Williams v. Calderon, 52 F.3d 1465, 1470 n. 3 (9th Cir. 1995) (applauding district court's refusal to consider whether counsel's conduct was deficient after determining that petitioner could not establish prejudice), cert. denied, 516 U.S. 1124 (1996).
The Strickland framework is "clearly established Federal law, as determined by the Supreme Court of the United States" for the purposes of 28 U.S.C. § 2254(d) analysis. See Williams (Terry) v. Taylor, 529 U.S. 362, 404-08 (2000).
The California Court of Appeal's conclusion that trial counsel's performance did not deprive petitioner of a fair trial was neither contrary to, nor an unreasonable application of, Strickland. Apart from Reed's testimony that she was a friend of petitioner's, it is clear from the record that she was a hostile prosecution witness and did not want petitioner convicted, and that she was aware of and concerned with what happens to "snitches" in North Richmond. And, contrary to petitioner's assertions, the Court of Appeal found that evidence of the friendship did come before the second jury, and the explanation for the difference in verdicts was that the two juries simply weighed witness credibility differently. Counsel's questions to Reed did not amount to the ineffective assistance of counsel. This claim for habeas corpus relief is therefore denied.
F. Ineffective Assistance of Appellate Counsel
Petitioner alleges that he was denied the effective assistance of counsel on appeal because counsel did not raise all of the issues raised by petitioner in his petition. He also alleges that counsel did not raise the juror bias issue as one of constitutional magnitude, and "implied" to petitioner that he need not exhaust state remedies before proceeding to federal court.
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. See 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 therefore 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 n. 9 (citing Strickland, 466 U.S. at 688, 694; Birtle, 792 F.2d at 849). Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested by a defendant. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997); Miller, 882 F.2d at 1434 n. 10.
In the present case, counsel raised on appeal the issue of juror selection, and in a separate petition for a writ of habeas corpus (considered with the appeal) argued the ineffectiveness of counsel based on the introduction of evidence of Reed's friendship with petitioner. This court has found that the California Court of Appeal correctly decided the merits of these issues and no constitutional violation occurred. Counsel did not raise on appeal the issue of insufficiency of the evidence to support the convictions on counts one and two. This court has found that under Jackson v. Virginia, 443 U.S. 307 (1979), the evidence was constitutionally sufficient. Finally, the claim regarding counsel's advice to petitioner about the exhaustion of state remedies is moot: petitioner has been deemed by this court to have exhausted all claims. As petitioner has shown neither deficient performance nor prejudice resulting from appellate counsel's actions, this claim for relief is denied.
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
The Clerk of Court shall enter judgment and close the file.
IT SO ORDERED.