Opinion
Civil No. 05cv0193-BEN (JFS).
September 28, 2005
REPORT AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS
Michael D. Slovik, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, raising five grounds for relief. The Court has considered the Petition, Respondent's Answer and Memorandum of Points and Authorities, Petitioner's Traverse and "Denial and Exception to Respondent's Answer," and all supporting documents submitted by the parties. Based upon the documents and evidence presented in this case, and for the reasons set forth below, the Court recommends that the Petition be DENIED and the case be dismissed with prejudice.
I. Factual Background
This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parke v. Baley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). Petitioner has not attempted to rebut the factual findings made by the state court. Therefore, the following facts are taken from the California Court of Appeal opinion in People v. Slovik, No. D033847, slip op. (Cal.Ct.App. Mar. 2, 2001):
On the evening of November 20, 1998, Slovik was drinking at Gusser's Carousel. Other individuals at the bar included the bartender, Katherine Buckley-Stoffel, and patrons, Mark Featherstone, Bridgette Lewis, Marilyn Woods, and Zachary Johnson. Buckley-Stoffel testified about 1:00 or 1:30 a.m., because Slovik was intoxicated and arguing with other patrons, she refused to serve him any more alcohol. He became angry, yelled and cursed, and threw a tip at her across the bar. She testified as he was escorted outside, he yelled obscenities and threatened to kill her.
Featherstone testified Buckley-Stoffel took Slovik's drink after Slovik did backflips through the bar. He said when Buckley-Stoffel asked Slovik to leave, he yelled, cursed and shoved her. Buckley-Stoffel yelled for Featherstone to call 911.
Woods testified Johnson jumped on Slovik and they began scuffling. Johnson testified when Buckley-Stoffel and others tried to get Slovik out of the bar, he went over to help them. Johnson said Slovik swung at Buckley-Stoffel, but missed, he (Johnson) stepped in the way, Slovik swung at him, and they began fighting. Johnson hit Slovik twice in the back of the head and they fell.
Buckely-Stoffel testified after she got Slovik out of the bar, she tried to close and lock the door, but he grabbed it and pushed her back inside, then shoved her and punched her in the shoulder. She said he grabbed pool balls and threw one toward Lewis and one toward her (Buckley-Stoffel) near the front entrance. She testified the second ball came within six inches of her head and broke the Plexiglass wall covering. She said she saw Slovik on the floor with Featherstone standing over him, then saw Slovik chasing Featherstone.
Featherstone testified he tried to pull the door shut, but Slovik grabbed it and came back inside, shoving Buckley-Stoffel and him against the wall. He said Slovik ran after Lewis, then slipped and fell on pool sticks he had knocked down earlier. Featherstone said he did not touch Slovik, but Slovik chased him around the pool table, picked up two pool balls and threw them at his face. He ducked, the balls hit the wall, then Slovik threw a third ball.
Woods testified after Johnson and Slovik scuffled, others tried to get Slovik outside, but he jerked the door away. Featherstone called 911 and Johnson ran out the back door. Woods said Slovik shoved Buckley-Stoffel and hit Buckley-Stoffel's arm. He was screaming. He grabbed two pool balls and, while Featherstone was on the other side of the pool table egging him on, threw one of the balls.
When Police Officers Swain, Columbovik, and Bray arrived at the bar, Slovik appeared enraged. They tried to calm him, but because he was intoxicated and would not comply with their orders, they forcibly arrested him for being drunk in public. The officers interviewed Buckley-Stoffel, Featherstone and Woods and had them provide statements. Buckley-Stoffel complained her arm and shoulder hurt, but there was no visible injury. Plexiglas near the front door had been broken.Defense Evidence
A stipulation was read to the jury that the next morning jail medical staff noticed two knots or lumps on Slovik's head.
Lewis testified for the defense. She said Slovik was intoxicated and belligerent that night and refused to leave until Buckley-Stoffel walked him to the door. Lewis said when she heard a disturbance she went outside and saw Johnson had Slovik in a choke hold against a car. Johnson's sister was screaming at Johnson to "let him go!" She said when Johnson went back into the bar, Slovik followed, Lewis and Buckley-Stoffel tried to pull the door shut, but Slovik came inside, pushing Buckley-Stoffel aside. Lewis said she kicked Slovik, he threatened her and she ran outside. She said Featherstone pushed Slovik and when Slovik tried to get up, Featherstone kicked him and pushed him back down, then Slovik got up and angrily threw pool balls in an erratic fashion, "not to pinpoint anybody out. He was just throwing them to throw them." On cross-examination, she said, "I don't know what he was trying to hit. I guess people. I don't know how." She also testified as Slovik went to the door, Featherstone threw a ball in that direction.
Lewis said when the police asked them to write statements, they talked among themselves about what had happened and Featherstone indicated they should not say anything about him pushing or kicking Slovik. Lewis testified although she wrote Slovik hit Buckley-Stoffel, she meant he pushed Buckley-Stoffel when she escorted him out of the bar. She said she did not mention the fight in the parking lot in her statement because the police said to write about what happened in the bar. She also did not mention that Featherstone had thrown a pool ball, but later decided to tell the truth when she heard Slovik would receive a long sentence.
Buckley-Stoffel testified that two months after the incident she found a packet of drugs belonging to Lewis in the bar floor. She told Lewis to leave and never return, but Lewis later tried to come back into the bar to talk to Featherstone. Lewis said this had nothing to do with her testimony.Rebuttal
A defense investigator testified that during his interview with Lewis she did not mention that anyone other than Slovik threw any pool balls, but she did say Featherstone pushed Slovik to the ground and then kicked him, and Buckely-Stoffel and Featherstone were not going to tell police about that or about Slovik and Johnson fighting in the parking lot.
Officer Swain testified the witnesses did not talk with each other when they were writing their statements, but acknowledged that before he distributed the statement forms, Officer Columbovik was alone with the witnesses for a short time.
(Lodgment No. 6 at 2-6.)
II. Procedural Background
On December 17, 1998, the San Diego county district attorney's office filed an information charging Petitioner with assault with a deadly weapon and by means of force likely to produce great bodily injury (Cal. Penal Code § 245(a)(1)) upon Katherine Buckley-Stoffel (count one) and upon Michael Featherstone (count two); and battery (Cal. Penal Code § 242) upon Featherstone (count three) and Buckley-Stoffel (count four). The information specifically alleged Petitioner personally used a deadly weapon within the meaning of Cal. Penal Code § 1192.7(C)(23), had three strikes (Cal. Penal Code § 667(b)-(i)), had three prior serious felony convictions (Cal. Penal Code § 667.5(a)) and had served two prior prison terms (Cal. Penal Code § 667.5(b)). (Lodgment 1, Clerk's Transcript ["CT"], at 1-3.)
A jury found Petitioner guilty of counts two and four as charged, guilty of the lesser included offense of simple assault of count one (Cal. Penal Code § 240), and not guilty of count three. (CT at 195-202.) Following a bifurcated court trial, the trial court found true the prior strike allegations and prior serious felony allegations. (Lodgment 2, Reporter's Transcript ["RT"], at 299-301, 348-49.) On June 28, 1999, the trial court sentenced Petitioner to a state prison term of 40 years to life, comprised of the third strike base term for count two (25 years to life), plus five years each for the three prior serious felony conviction enhancements. (RT at 11-12.) The trial court stayed the enhancements for the prior prison terms. (CT at 176, 204.) Petitioner was given credit for time served for the misdemeanor offenses, counts one and four. (RT at 11-12.)
On March 2, 2001, the California Court of Appeal, Fourth Appellate District, Division One, upheld Petitioner's convictions for counts one, two and four and upheld two of Petitioner's three prior strike convictions and two of the three serious felony convictions. (Lodgment 6.) The state appellate court ordered stricken the enhancements on the two prison priors and reversed the third alleged strike and third alleged prior serious felony conviction for insufficient documentation. The court remanded the case to the trial court to allow the state to exercise the option to retry the third alleged strike and third alleged prior serious felony conviction. In all other respects, the state appellate court affirmed the judgment. (Id. at 18.) On June 13, 2001, the California Supreme Court denied Petitioner's petition for review. (Lodgment 8.)
The state declined to exercise its right to retry the third alleged strike and third alleged serious felony conviction. (Lodgment 9; CT at 169.) On September 24, 2001, Petitioner was accordingly re-sentenced to state prison for 25 years to life, which was the third strike base term for count two, plus two separate five-year enhancements for the two prior serious felony convictions upheld by the California Court of Appeal. (Lodgment 10, Reporter's Transcript, Volume 4, Sentencing ["RTS"], at 2-4.) The trial court noted that the misdemeanor assault and battery terms had already been served. (CT at 170; RTS at 4.) On November 22, 2002, the California Court of Appeal affirmed the judgment in its entirety. (Lodgment 14.)
On September 24, 2001, Petitioner filed a state habeas corpus petition in the San Diego Superior Court (Lodgment 15), which was denied by that court on October 24, 2001 (Lodgment 16). On August 14, 2003, Petitioner filed a habeas corpus petition in the state appellate court (Lodgment 17), which was denied by that court on September 25, 2003 (Lodgment 18). On December 30, 2003, Petitioner filed a state habeas corpus petition in the California Supreme Court (Lodgment 19), which was denied by that court on December 15, 2004 (Lodgment 20).
On February 24, 2005, Petitioner filed the instant Petition for Writ of Habeas Corpus in this court (Docket No. 3) and a Memorandum of Points and Authorities in Support of the Petition ("Pet. Mem.") (Docket No. 5). Respondent has filed an Answer and a Memorandum of Points and Authorities in Support of the Answer ("Resp. Mem."). (Docket Nos. 19-20.) Respondent also lodged portions of the state record with the Court. (Docket No. 21.) Petitioner thereafter filed a Traverse and a "Denial and Exception to Respondent's Answer." (Docket Nos. 27-28.)
III. Discussion
A. Scope of Review
Title 28, United States Code, § 2254(a), sets forth the following 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. § 2254(a) (1994) (emphasis added).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to habeas corpus petitions filed after 1996.Lindh v. Murphy, 521 U.S. 320 (1997). As amended, 28 U.S.C. § 2254(d) reads:
(d) 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 State court proceeding.28 U.S.C.A. § 2254(d) (West Supp. 2004).
To obtain federal habeas relief, Petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2). Williams v. Taylor, 529 U.S. 362, 403 (2000). The Supreme Court interprets § 2254(d)(1) as follows:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decided a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 529 U.S. at 412-13; see Lockyer v. Andrade, 538 U.S. 63, 73-74 (2003).
Where there is no reasoned decision from the state's highest court, this Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record "to determine whether the state court clearly erred in its application of controlling federal law." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003);Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Lockyer, 538 U.S. at 75-76). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). As long as neither the reasoning nor the result of the state-court decision contradicts Supreme Court precedent, the state court decision will not be "contrary to" clearly established federal law. Id.
B. Analysis
Petitioner raises five claims in this federal petition: (1) violation of his due process rights guaranteed by the Sixth and Fourteenth Amendments, because the trial court erred in defining an element of assault; (2) violation of his Fourteenth Amendment rights, because the trial court prejudicially excluded evidence that a prosecution witness lied under oath; (3) ineffective assistance of counsel during re-sentencing; (4) violation of his due process rights under the Fourteenth Amendment, because newly discovered evidence is substantially material to issues of guilt and punishment; and (5) violation of his constitutional right to brief the issue of whether the state was barred from retrying the priors reversed on insufficient evidence. 1. Petitioner is not entitled to habeas relief on the basis of claim one
Petitioner contends in claim one that he was denied due process as guaranteed by the Fourteenth Amendment because the trial court failed to properly instruct the jury in three different aspects: (1) the court misinstructed the jury on the proper level of intent required for assault; (2) the court omitted any instruction on the prosecution's burden of proof regarding self-defense; and (3) the court instructed the jury it could not consider voluntary intoxication as a defense to the charges of assault and battery. (Pet. Mem. at 13.)
Petitioner further contends that the state appellate court should have applied Chapman v. California, 386 U.S. 18 (1967), rather than People v. Watson, 46 Cal. 2d 818 (1956), in determining whether the errors, if any, were harmless. (Pet. Mem. at 15.) Chapman held that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."Chapman, 386 U.S. at 24. However, the failure to cite Supreme Court cases does not, by itself, render the state court decision contrary to clearly established federal law. Packer, 537 U.S. at 8 ("indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them").
In addition, Petitioner's reliance on Chapman is misguided, because clearly established Supreme Court law governing jury instructional error is found in Henderson v. Kibbe, 431 U.S. 145 (1977):
The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process", Cupp v. Naughten, 414 U.S. [141], at 147 [1973], not merely whether "the instruction is undesirable, erroneous, or even `universally condemned,'" id., at 146 .
[The] burden is especially heavy [when] no erroneous instruction was given. . . . An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.Id. at 154.
"[A] criminal defendant is entitled to adequate instructions on his or her theory of defense." Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984); but see Gilmore v. Taylor, 508 U.S. 333, 343-44 (1993) (finding the right to present a complete defense does not entitled a defendant to a particular set of jury instructions). The allegedly erroneous jury instruction cannot be judged in isolation. Estelle v. McGuire, 502 U.S. 62, 72 (1991). Rather, it must be considered in the context of the entire trial record and the instructions as a whole. Id.
Below, the Court considers each of Petitioner's allegations regarding erroneous jury instructions under the standard set out in Kibbe. a. Instruction on the proper level of intent required for assault
Petitioner argues that the trial court misinstructed the jury on the proper level of intent required for assault. The court orally instructed the jury on the elements of assault with CALJIC No. 9.00:
In order to prove an assault, each of the following elements must be proved:
1. A person willfully and unlawfully committed an act which by its nature probably and directly resulted in the application of physical force on another person;
2. At the time the act was committed, the person intended to use physical force upon another person to do an act that was substantially certain to result in the application of physical force upon another person; and
3. At the time the act was committed, the person had the present ability to apply physical force to the person of another.
"Willfully" means that the person committing the act did so intentionally.
(RT at 240.) In the written jury instructions, however, the word "or" was placed between the first and second paragraphs. (CT at 29.) Petitioner argues that the written instruction given to the jury failed to convey the proper level of intent required for assault.
Because the California Supreme Court denied Petitioner's petition without citation, this Court will "look through" the summary denial to the last reasoned state court decision on the issue. Nunnebaker, 501 U.S. at 801. The last reasoned decision on this issue was in the state appellate court. (Lodgment No. 6.) The state appellate court found that the written instructions were erroneous, but there was no possibility that Petitioner could have obtained a more favorable result absent the error. (Id. at 10.) The court noted that the oral instruction properly informed the jury of the proper level of intent for assault and both the prosecutor and the defense attorney repeated the correct form of the instructions. In addition, the court determined that Petitioner mischaracterized the evidence when he argued that the jury could have determined he acted with mere negligence, because several witnesses testified that Petitioner was angry, made threatening remarks towards several people, and threw pool balls at several people:
The jury could not reasonably have found Slovik acted with mere negligence or recklessness, but could have found only that he "willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person; and [¶] at the time the act was committed, [he] intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon another person." (CALJIC No. 9.00.)
(Id. at 11-12.)
The state appellate court found that the error in the written instructions, by the inclusion of the word "or" between paragraphs one and two, did not prejudice Petitioner. In light of the fact that the correct instructions were repeated several times and in light of the state appellate court's factual finding that Petitioner could not have acted with mere negligence, this Court finds the state court's rejection of this argument was not contrary to, nor an unreasonable application of, clearly established Supreme Court law.
b. Instruction on the prosecution's burden of proof regarding self defense
Petitioner further argues that the trial court erred in orally omitting the last paragraph of the assault instruction, lessening the prosecutor's burden of proof regarding self-defense. (Pet. Mem. at 13.) The trial court struck the final paragraph of CALJIC No. 9.00, which reads:
[A willful application of physical force upon the person of another is not unlawful when done in lawful [self-defense] [or] [defense of others]. The People have the burden to prove that the application of physical force was not in lawful [self-defense] [defense of others]. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty.]
(RT at 241.) The trial court did, however, instruct on self-defense with CALJIC Nos. 5.30, 5.31, 5.50, 5.51, 5.52, 5.54, 5.55, 5.56, and 16.140 (instruction on battery). (RT at 243-45;CT at 30, 35-42.)
The last reasoned state court opinion that addresses this issue is the state appellate court decision of March 2, 2001. (Lodgment No. 6.) The court found that, assuming there was any error, there was no reasonable probability of a different result had the court included the omitted paragraph to the instruction.
The Supreme Court has recognized federal due process may be offended when a state court fails to give an instruction when the failure to give the instruction lessened the prosecution's burden to prove beyond a reasonable doubt any element of the offense or otherwise infected the trial with unfairness. Kibbe, 431 U.S. at 153. Even where there is instructional error, the error must be such that it had "a substantial and injurious effect or influence in determining the jury's verdict." Brect v. Abrahamson, 507 U.S. 619 at 637 (1993). Petitioner's burden is especially heavy when no instruction was given, because an omission is less likely to be prejudicial than a misstatement of the law. Kibbe, 431 U.S. at 154.
The jury heard eight instructions concerning self-defense. One such instruction was CALJIC No. 5.51 which states in part, "Actual danger is not necessary to justify self-defense. . . . [A] person's right of self-defense is the same whether the danger is real or merely apparent." (CT at 38.) The jury also heard CALJIC No. 16.140, a battery instruction that contains a statement about the state's burden: "The burden is on the People to prove that the use of force or violence was not in lawful [self-defense]." Taking into account the entire trial record and the instructions as a whole, McGuire, 502 U.S. at 72, the omission of the paragraph from CALJIC No. 9.00 did not have a substantial and injurious effect in determining the jury's verdict.
c. Instruction that voluntary intoxication not a defense to assault or battery
Petitioner also argues that the trial court erroneously instructed the jury that voluntary intoxication was not a defense to assault or battery. California defines assault as a general intent crime. People v. Williams, 26 Cal. 4th 779, 788 (2001). Battery is also a general intent crime in California. People v. Lara, 44 Cal. App. 4th 102, 107 (1996). Voluntary intoxication is not a defense for a general intent crime. Cal. Penal Code § 22; People v. Lisnow, 151 Cal. Rptr. 621, 623 (Cal.Ct.App. 1978). Therefore, the trial court's instructions were not erroneous. In any case, the instruction was based on an interpretation of state law, and habeas relief is not available for an alleged error in the interpretation or application of state law. McGuire, 502 U.S. at 67-68.
The state appellate court's rejection of Petitioner's claim of errors in the jury instructions was not contrary to, nor an unreasonable application of, clearly established federal law. Therefore, this Court recommends the Petition be DENIED as to claim one. 2. Petitioner is not entitled to habeas relief on the basis of Claim 2
In Claim 2, Petitioner contends that his due process rights were violated because the trial court erroneously excluded evidence that would have impeached a key prosecution witness, Mark Featherstone. (Pet. Mem. at 25.) Specifically, on cross-examination, Featherstone was asked by defense counsel whether he was currently on probation. Featherstone responded that he was not, and defense counsel requested to introduce evidence that he was indeed on probation. The trial court sustained an objection to the request. Petitioner contends that if the jury had heard evidence that Featherstone lied under oath, the judgment against Petitioner would have been substantially different because Featherstone's testimony was responsible for Petitioner's felony conviction. (Pet. Mem. at 25.) Respondent argues that state trial courts can reasonably limit cross-examination and the exclusion of evidence in Petitioner's trial did not significantly alter jurors' impression of Featherstone's credibility. (Resp. Mem. at 10.)
The last reasoned state court opinion that addresses this claim is the state appellate court decision of March 2, 2001. (Lodgment No. 6.) That court decided that, absent a clear showing of abuse, it would not reverse the trial court's exercise of discretion. (Id. at 13.) In addition, the court found that there was no reasonable probability of a different result had the trial court allowed the question regarding Featherstone's probationary status. (Id.) The court concluded that trial court's decision did not result in a miscarriage of justice. (Id.)
The Confrontation Clause of the Sixth Amendment guarantees that each defendant has the right to confront witnesses testifying against him. Delaware v. VanArsdall, 475 U.S. 673, 679 (1986). The "main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Id. (citations omitted). It does not, however, restrict trial judges from imposing reasonable limits on the cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, or interrogation that is only marginally relevant. Id. The petitioner has the burden of showing that a reasonable jury might have received a significantly different impression of Featherstone's credibility had defense counsel been permitted to pursue his proposed line of cross-examination. Id. at 680. If the petitioner meets his burden, the court must then decide whether the error was harmless. Brecht, 507 U.S. at 637.
Here, Petitioner has not met his burden. Unlike inVanArsdall, defense counsel in this case was given an opportunity to cross-examine Featherstone. (RT at 72-84.) During this cross-examination, defense counsel was able to question Featherstone's rendition of the night's events and Featherstone's credibility. The trial court did not permit defense counsel to present evidence that Featherstone was on probation, because the court had permitted defense counsel to question previous witnesses about their probationary status, and the court did not find that the information about Featherstone's probationary status was particularly relevant. (RT at 90-91.) In addition, because defense counsel wanted to present evidence that Featherstone was on probation for a misdemeanor DUI, the court believed the prejudicial value of the evidence outweighed its probative value. (RT at 91.) The Supreme Court in VanArsdall noted, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." VanArsdall, 475 U.S. at 679 (citation omitted).
Defense counsel was given an opportunity to cross-examine Featherstone and put his credibility into question. Petitioner has not shown that a reasonable jury might have perceived Featherstone's credibility differently if defense counsel had been allowed to ask him further questions about his probationary status. Therefore, the state court's decision regarding claim two was not contrary to, nor an unreasonable application of, clearly established federal law. This Court recommends that the Petition be DENIED as to claim two.
3. Petitioner is not entitled to habeas relief on the basis of claim three
Petitioner contends in claim three that he was deprived of his right to effective assistance of counsel at re-sentencing. Petitioner argues that the deputy public defender appointed to him on re-sentencing did no investigation or preparation for a motion seeking a sentence lower than the maximum. (Petition at 8.) Respondent asserts that counsel did not act in an unreasonable manner since the state appellate court did not remand the entirety of the sentence. It only gave the state an option to retry the prior serious felony allegation, and thereby limited the issues before the trial court. (Resp. Mem. at 11-13.)
The last reasoned state court opinion that addresses this claim is the state appellate court decision of November 22, 2002, which affirmed the re-sentencing. (Lodgment No. 14.) That court found that Petitioner had not demonstrated a reasonable probability of a different outcome or that his counsel's performance rendered the proceeding fundamentally unfair. (Id. at 4.) The court noted that the trial court considered the supplemental probation report, the appellate opinion and the original probation report when it re-sentenced Petitioner. The original probation report showed Petitioner had an extensive criminal history beginning in 1978, with prior efforts at probation and parole ending in failure. (Id.) The state appellate court further noted that Petitioner had continued his criminal activity since his first and second prior convictions and had often been in jail. (Id. at 5.) Finally, the court noted that the supplemental probation report contained no mitigating evidence. (Id.)
The United States Supreme Court has recognized that the Sixth Amendment right to counsel exists in order to protect the fundamental right to a fair trial. Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 458 (1938);Powell v. Alabama, 287 U.S. 45, 53 (1932). In addition, the Supreme Court has held that "the right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970). To demonstrate ineffective assistance of counsel, a defendant must show: (1) that his counsel's performance was deficient; and (2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice is established if there is a reasonable probability that a more favorable outcome would have resulted but for the deficient performance by counsel. Id. at 694. Because Petitioner must prove both Strickland elements, the court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
Petitioner argues that his attorney at the re-sentencing failed to request less than the maximum sentence and failed to introduce any mitigating evidence. However, before the trial court originally sentenced Petitioner, it had heard testimony on whether to dismiss one of the prior strike convictions. (RTS at 1-14.) During that sentencing hearing, the trial court considered briefs and heard arguments from the state and defense counsel. Defense counsel presented mitigating evidence to the court, and the court heard testimony from Petitioner's sister and Petitioner himself. The court concluded Petitioner had not met any of the objective criteria required before the court could dismiss one of the prior strike convictions. (Id. at 9-11.)
Given that the trial court had already heard arguments on the issue, Petitioner's counsel at the re-sentencing may have decided the matter did not need to be re-argued. "The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Petitioner has failed to show that counsel's performance fell "outside of the wide range of professional competence." Id. at 687. In addition, because the trial court had already heard the issue and had decided not to dismiss any of the prior strike convictions, Petitioner has failed to show a reasonable probability that a more favorable outcome would have resulted if counsel had done what Petitioner wished at the re-sentencing. Id. at 694. The appellate court upheld the trial court's re-sentencing and found that Petitioner had been competently represented. (Lodgment No. 14.) This Court finds such a determination was neither contrary to established federal law nor unreasonable in light of the facts of the case. Accordingly, this Court recommends that the Petition be DENIED as to claim three.
4. Petitioner is not entitled to habeas relief on the basis of claim four
In claim four, Petitioner argues he is entitled to relief based upon newly discovered evidence that supports his claim a prosecution witness provided false testimony. (Petition at 9.) Specifically, Petitioner argues that a declaration from Featherstone's roommate reveals Featherstone was the first to throw a pool ball on the night of the incident. (Pet. Mem. at 47.) Respondent asserts: (1) the jurors heard conflicting evidence as to who threw the first pool ball and thus the newly discovered evidence did not undermine the entirety of the prosecution's case; and (2) even if Featherstone's roommate had taken the stand, he would have, at best, provided contradictory testimony and would not necessarily have been able to prove Featherstone's testimony as false. (Resp. Mem. at 14.)
The last reasoned state court opinion that addresses this claim is the state appellate court decision of September 25, 2003, denying Petitioner's habeas corpus petition. (Lodgment No. 18.) That court found that many witnesses to the bar fight provided conflicting testimony, and the jury believed Petitioner had first thrown the pool ball at Featherstone. (Id. at 1.) The court concluded that the "newly discovered evidence" did not "establish that false evidence was introduced against him that was substantially material or probative and of such significance that with reasonable probability it could have affected the outcome of the trial." (Id. at 2.)
A claim based on newly discovered evidence does not warrant habeas relief absent a constitutional violation occurring in the underlying state criminal proceeding. Herrera v. Collins, 506 U.S. 390, 400 (1993); Townsend v. Sain, 372 U.S. 293, 317 (1963). The petitioner must show that the newly discovered evidence "would probably have resulted in his acquittal."Jeffries v. Blodgett, 5 F.3d 1180, 1187-88 (9th Cir. 1992),cert. denied, 114 S. Ct. 1294 (1994) (finding proffered evidence showed only that other persons were in the vicinity of the crime); Gordon v. Duran, 895 F.2d 610, 615 (9th Cir. 1990) (finding petitioner provided no reason for failing to call new witness to testify at trial); Quigg v. Crist, 616 F.2d 1107, 1112 (9th Cir. 1980) (finding new evidence would not have ruled out petitioner's participation in murder).
Petitioner's "newly discovered evidence" is a declaration from Randy Deal, Featherstone's former roommate. In the declaration, Deal states that Featherstone boasted about throwing the first pool ball and that he had "kicked a guy in the ass." (Pet. Mem., Ex. 2.) In addition, Deal states that Featherstone and other prosecution witnesses had decided to change the facts and tell a different story to the police. (Id.) Petitioner contends the declaration shows that a key prosecution witness falsely testified and that this testimony was of such significance as to alter the outcome of the trial. (Pet. Mem. at 46-47.)
The transcript of the trial reveals that the jury heard a number of conflicting versions of what occurred at the bar. Buckley-Stoffel, for instance, testified that Petitioner threw several pool balls in different directions the evening of the brawl. (RT at 33-35.) Woods testified that Petitioner had a pool ball in each hand, was swinging his arms wildly, and threw a pool ball that went through the wall. (RT at 109-10.) Defense witness, Bridgette Lewis, testified that Petitioner first threw the pool balls in an "erratic" fashion and then Featherstone threw a pool ball in the direction of Petitioner. (RT at 178.) Lewis also testified that, before they spoke to the police, Featherstone told her not to tell the police that Featherstone had pushed and kicked Slovik. (RT at 191-92.) Deal would not necessarily have corroborated anyone's testimony but instead would have added further conflicting testimony. In addition, Deal was not an eye witness to the incident.
In addition, as discussed hereinabove, the jury was instructed on and was able to consider the defense of "self-defense."
Petitioner has provided no reason why Deal was not (or was unavailable to be) called as a defense witness during the trial. In addition, Petitioner has not shown that Deal's testimony would have been able to tangibly prove Petitioner's innocence or that it would probably have resulted in his acquittal. The state appellate court found that Petitioner was not entitled to relief based on claim four. This Court finds that the state court's decision was neither contrary to nor an unreasonable application of established federal law. Therefore, this Court recommends that the Petition be DENIED as to claim four.
5. Petitioner is not entitled to habeas relief on the basis of claim five
Petitioner contends in Claim 5 that he was denied his constitutional right to brief the issue of whether the prosecution should be barred from retrying the priors reversed on insufficient evidence. (Petition at 10.) Respondent argues that the decision by the state not to retry the prior serious felony allegation mooted the claim, thereby foreclosing any federal habeas relief. (Resp. Mem. at 15.) In Petitioner's Traverse, he asserts that he is not concerned with whether the state could retry the prior strike and serious felony conviction allegations. (Traverse at 17.) Instead, he contends that because of his ineffective assistance of counsel at the re-sentencing hearing, he was denied an opportunity to subject the state's case to "meaningful adversarial testing" on the remaining prior strike convictions. (Id.) Because it appears that Petitioner is actually reasserting the ineffective assistance of counsel claim asserted in claim three, this Court recommends that claim five be DENIED as moot. Based on the discussion above regarding ineffective assistance of counsel at re-sentencing, this Court has also recommended that claim three be DENIED.
IV. Conclusion
After thorough review of the record in this matter and based on the foregoing analysis, this Court recommends that the Petition for Writ of Habeas Corpus be DENIED and this action be DISMISSED WITH PREJUDICE.
This Report and Recommendation of the undersigned Magistrate Judge is submitted to the District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).
On or before October 24, 2005, any party may file and serve written objections with the Court and serve a copy on all parties. The document shall be entitled "Objections to Report and Recommendation." Any reply to the objections shall be filed and served no later than ten days after being served with the objections. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.