EDWARD M. CHEN, District Judge.
Corey Mitchell filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his conviction in Alameda County Superior Court. Respondent has filed an answer to the petition and Mr. Mitchell has filed a traverse. For the reasons discussed below, the Court denies the petition.
Mr. Mitchell was convicted of several counts of carjacking and related crimes. The facts of only two of the five carjacking episodes are relevant to the legal claims presented in the petition for writ of habeas corpus. The California Court of Appeal described those two criminal episodes:
People v. Mitchell, Nos. A113501, A118946, 2008 WL 2898663, at *2-3 (Cal. Ct. App. 2008).
Mr. Mitchell does not assert any claims relating to the facts of three other carjacking episodes so they need only be mentioned briefly. First, on the morning of October 17, 2003, Mr. Mitchell hit Vance Goulart and took his car at gunpoint. Id. at *1-2. Second, on the afternoon of October 24, 2003, Mr. Mitchell shot Santos Cruz in the chest and took his minivan. Id. at *2. Third, on the afternoon of October 26, 2003, Mr. Mitchell took Marie Sylvestre's car at gunpoint. Id. at 3.
Following a jury trial in Alameda County Superior Court in 2006, Mr. Mitchell was convicted of six counts of carjacking, two counts of second degree robbery, three counts of possession of a firearm by a felon, kidnapping in the commission of a carjacking, assault with a semiautomatic firearm, and reckless driving while fleeing from a peace officer. The jury also found true several sentence enhancement allegations. On March 20, 2006, the court sentenced Mr. Mitchell to state prison for a term of 62 years to life.
Mr. Mitchell then filed a direct appeal and a petition for writ of habeas corpus. The California Court of Appeal dismissed one count of carjacking and otherwise affirmed the judgment. The California Court of Appeal denied Mr. Mitchell's petition for writ of habeas corpus. In 2008, the California Supreme Court denied Mr. Mitchell's petition for review.
On October 9, 2009, Mr. Mitchell filed his federal petition for writ of habeas corpus. The case was eventually stayed to allow Mr. Mitchell to exhaust state court remedies for an unexhausted claim. Mr. Mitchell next went to the state courts, and presented that claim to exhaust it. When he returned to federal court, respondent successfully moved to dismiss that now-exhausted claim as procedurally barred. The following claims remain for adjudication: (1) the evidence is insufficient to support the conviction of kidnapping in the commission of a carjacking in Count 4; (2) the evidence is insufficient to support the carjacking conviction in Count 13; and (3) the Marsden motions to substitute counsel were improperly denied. Respondent has filed an answer, and Mr. Mitchell has filed a traverse.
This Court has subject matter jurisdiction over this action for a writ of habeas corpus under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the conviction and sentence of a person convicted in Alameda County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).
This Court may entertain a petition for 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 Antiterrorism And Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A 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).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. "A federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was `objectively unreasonable.'" Id. at 409.
Mr. Mitchell contends that his conviction of kidnapping during the commission of a carjacking violates his due process rights because there was insufficient evidence to support the conviction. Specifically, he argues that the movement of Janet Grossman, the victim, was incidental to the carjacking and that the kidnapping occurred before (rather than during) the carjacking.
California law provides for a sentence of life imprisonment with the possibility of parole for "[a]ny person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person." Cal. Penal Code § 209.5(a). A kidnapping during the commission of a carjacking occurs only "if the movement of the victim is beyond that merely incidental to the commission of the carjacking, the victim is moved a substantial distance from the vicinity of the carjacking, and the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself." Id. at § 209.5(b).
The asportation, or movement, requirement is similar for several types of aggravated kidnapping in California, such as kidnapping for rape or robbery or kidnapping during the commission of a carjacking. See People v. Bell, 179 Cal.App.4th 428, 436 (Cal. Ct. App. 2009); Cal. Penal Code §§ 209, 209.5. The jury must consider both whether the movement was more than merely incidental to the crime and whether there was an increased risk of harm to the victim, but these two "are not mutually exclusive, they are interrelated." People v. Shadden, 93 Cal.App.4th 164, 168 (Cal. Ct. App. 2001). As to whether the movement was more than merely incidental to the commission of the underlying crime in an aggravated kidnapping, such as kidnapping during the commission of a carjacking, "the jury considers the scope and nature of the movement, which includes the actual distance a victim is moved. There is, however, no minimum distance a defendant must move a victim to satisfy" this element. People v. Simmons, 233 Cal.App.4th 1458, 1471 (Cal. Ct. App. 2015) (internal quotation marks omitted). "As to whether the movement increased a victim's risk of harm, the jury considers such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes." Id. (internal quotation marks omitted). See, e.g., People v. Dominguez, 39 Cal.4th 1141, 1151-52 (Cal. 2006) (asportation element of kidnapping-for-rape satisfied where the victim was moved about 25 feet from the shoulder of the road, down an embankment and partially into an orchard about 10-12 feet lower than the road's surface); People v. Rayford, 9 Cal.4th 1, 23 (Cal. 1994) (asportation element satisfied where evidence showed rapist-defendant forcibly moved victim "105 feet at night from the parking lot of a closed store to the other side of a wall located at the edge of the lot" where she was outside the view of passers-by); Shadden, 93 Cal. App. 4th at 170 (asportation element of kidnapping-for-rape satisfied where victim was moved nine feet, from front counter of store to a small back room where she would be out of public view and which "made it less likely for others to discover the crime and decreased the odds of detection").
The California Court of Appeal rejected Mr. Mitchell's challenge to the sufficiency of the evidence to support his conviction of kidnapping during the commission of a carjacking. The state appellate court noted that, in reviewing the sufficiency of the evidence to support a conviction, a court must view the record in the light most favorable to the judgment and then must decide whether that record discloses substantial evidence, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Mitchell, at *6.
Mitchell, at *7.
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). 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, but rather determines 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may a court conclude that the evidence is insufficient. See Jackson, 443 U.S. at 324. 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 in 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 Ninth Circuit has explained that "`[c]ircumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.' Nevertheless, `mere suspicion or speculation cannot be the basis for creation of logical inferences.'" Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citations omitted). "Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors `draw reasonable inferences from basic facts to ultimate facts.'" Coleman v. Johnson, 132 S.Ct. 2060, 2064 (2012) (per curiam) (citing Jackson, 443 U.S. at 319). "[O]n habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge" unless "the state court decision was objectively unreasonable." Id. at 2062 (internal quotation marks omitted).
The California Court of Appeal's rejection of Mr. Mitchell's challenge to the sufficiency of the evidence was not contrary to, or an unreasonable application of clearly established federal law, as set forth by the U.S. Supreme Court. The state appellate court identified the correct legal standard and reasonably applied it.
The California Court of Appeal reasonably determined that the evidence was sufficient to support the jury's determination that the movement of Ms. Grossman was beyond that merely incidental to the commission of the carjacking and increased the risk of harm to her. Ms. Grossman described her property as including a house, a path leading from the house to a detached garage, and a garden adjacent to the detached garage. One accessed the garage and garden from Hill Lane, a quiet thoroughfare. RT 299-301. Ms. Grossman testified that Mr. Mitchell forced her at gunpoint to move about 70 feet, and to move to inside her house from her garden, which was next to her garage or carport. RT 315 (the distance from the area she was in when confronted to the kitchen pantry where the keys were was about 70 feet); RT 316 (Ms. Grossman did not move or allow Mr. Mitchell in her house in the exercise of her own free will); RT 316 (Ms. Grossman thinks Mr. Mitchell kept the gun pointed at her as she walked in front of him to the house). Ms. Grossman's testimony would allow a reasonable jury to view that movement as increasing the risk of danger to her, as she was initially in a place where she (with her kidnapper) could be seen by neighbors and passers-by. See RT 309 (Ms. Grossman stalled for time, hoping that a neighbor would see them); RT 309 ("it's very typical on a warm afternoon for people to be gardening or doing other things in the backyard, and I was — with the [garage] door wide open, I was hoping that somebody would come down Hill Lane, would see this man holding a gun at me, or would just notice that something wasn't right"). Once she was made to go in the house by Mr. Mitchell's threat of force, her opportunity to be detected and rescued by a neighbor or passerby decreased. Ms. Grossman's 13-year-old son was in the house, but Ms. Grossman's testimony indicates she thought of him as someone to be protected, rather than someone who would rescue her. See RT 308 (her 13-year-old son was at home working on a computer in the recreation room in the basement); RT 314, 338 (she swung the pantry door open to slow any potential entry into the kitchen by her son); RT 314 (after her son called out "Mom" when she entered, she "screamed for him to stay put and not to come upstairs"); RT 313 ("I didn't know if [defendant] was going to just leave, or if he was going to shoot me, or harm my child that was home"). Cf. People v. Simmons, 233 Cal.App.4th 1458, 1472 (Cal. Ct. App. 2015) (asportation element satisfied for kidnapping-for-robbery convictions where two victims were forced to walk back up the stairs outside the house and into the house to be robbed because the movement "decreased the likelihood the defendants would be detected and increased the victims' risk of harm" once in the house); People v. Robertson, 208 Cal.App.4th 965, 984 (Cal. Ct. App. 2012) (movement of the victim from the back of the garage by a door to the front of the garage next to a large tub of water, which led victim to fear being drowned if she resisted, "was not merely incidental and increased the victim's risk of physical and psychological harm above the risk inherent in the crime of rape").
The jury also reasonably could have determined that the kidnapping was not merely incidental to the carjacking because Mr. Mitchell could have accomplished the carjacking without the kidnapping. For example, Mr. Mitchell could have retrieved the keys himself while letting Ms. Grossman remain in the garden or he could have let her go to get the keys while he waited in the garden. See RT 313 ("I asked him if I could — in fact, I think I begged him. I said, `Please, my keys are inside the house. I'll go back and get you the keys. I won't call the police. You can leave.' [¶] And he said, No, he couldn't do that."); RT 314 (Ms. Grossman told him she did not want him in the house). The California Court of Appeal reasonably relied on Mr. Mitchell's decision to escort the victim back to her house at gunpoint as evidence that the kidnapping was not merely incidental to the carjacking.
The forced movement of Ms. Grossman about 70 feet from the place where Mr. Mitchell first demanded the keys changed Ms. Grossman's environment from a relatively open area to a place significantly more secluded, decreasing the possibility of detection, escape or rescue. As the appellate court reasonably concluded, the jury could find that this compelled movement increased the risk of harm to Ms. Grossman, decreased the risk of detection, and provided enhanced opportunities for Mr. Mitchell to commit additional crimes. See People v. Martinez, 20 Cal.4th 225, 236-37 (Cal. 1999) ("kidnaps" "has been interpreted to require consideration of the `scope and nature' of the movement and the increased risk of harm to the victim;" nothing "limits the asportation element solely to actual distance"); Shadden, 93 Cal. App. 4th at 169-70 (moving victim nine feet was sufficient to satisfy the asportation element of kidnapping to commit rape, where victim was moved from the retail area of the store to a back room).
There is no merit to Mr. Mitchell's argument that the kidnapping was not committed during the carjacking because it took place before the carjacking. "The intent that the kidnapping facilitate the carjacking must be present when the original asportation began." People v. Ortiz, 208 Cal.App.4th 1354, 1365 (Cal. Ct. App. 2012). Here, there was ample evidence that would allow a jury to so find: Mr. Mitchell approached Ms. Grossman with a gun, asked for her car keys, and only demanded that Ms. Grossman move to her house after she told him that the keys to the car were in the house. She only walked to the house after Mr. Mitchell demanded that she get the keys to her car and followed behind her with a gun. From this evidence, a rational jury could have concluded that Mr. Mitchell kidnapped Ms. Grossman to obtain her keys with the intent to take her vehicle and accomplish the carjacking.
Viewing the evidence in the light most favorable to the prosecution and drawing the reasonable inferences therefrom in the prosecution's favor, a rational trier of fact could have concluded that Mr. Mitchell's movement of Ms. Grossman was more than incidental to the carjacking and was done during the commission of the carjacking offense. The California Court of Appeal's rejection of the challenge to the sufficiency of the evidence to support the conviction of kidnapping during the commission of a carjacking was not an unreasonable application of Jackson. Mr. Mitchell is not entitled to the writ on this claim.
Mr. Mitchell contends that his right to due process was violated because the evidence was insufficient to support his conviction of carjacking Sarah Foster. Specifically, he contends that Ms. Foster could not be the victim of the carjacking because she was not the driver, not a passenger, and not in possession of the vehicle when it was taken at gunpoint.
Under California law, carjacking is "the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." Cal. Penal Code § 215(a).
The California Court of Appeal rejected Mr. Mitchell's claim that the evidence was insufficient to support the conviction for carjacking Ms. Foster.
Mitchell, at *8.
As mentioned in Section A.3, above, a court reviewing a challenge to the sufficiency of the evidence to support a conviction must decide 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." Jackson v. Virginia, 443 U.S. at 319. This being a federal habeas action reviewing a state court conviction, relief is available only if the state court's rejection of the sufficiency of the evidence challenge was "objectively unreasonable." Coleman v. Johnson, 132 S. Ct. at 2062. The California Court of Appeal's decision was not objectively unreasonable.
Unlike robbery, which requires a taking from the person or immediate presence of the possessor, a carjacking can occur when the vehicle is taken from the person or immediate presence of either the possessor or any passenger. See People v. Hill, 23 Cal.4th 853, 860 (Cal. 2000). A vehicle is within a person's immediate presence for purposes of § 215(a) "if it is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it." People v. Johnson, 60 Cal.4th 966, 989 (Cal. 2015) (internal quotation marks omitted). A passenger need not have a possessory interest to be a victim of a carjacking. Hill, 23 Cal. 4th at 860; e.g., id. at 860-61 (upholding two carjacking convictions; one conviction for the carjacking of the mother who possessed the car and another conviction for the carjacking of the infant in the car); People v. Hamilton, 40 Cal.App.4th 1137, 1144 (Cal. Ct. App. 1995) (upholding two carjacking convictions where armed defendant approached husband and wife, who were standing outside their car from which they had just exited). California law also "does not require that the victim be inside or touching the vehicle at the time of the taking" for a carjacking to occur. People v. Coryell, 110 Cal.App.4th 1299, 1303 (Cal. Ct. App. 2003) (passenger, who fled from the car after witnessing a vicious attack on the driver, was also a victim of carjacking); People v. Mora, 2007 WL 1982264, at *2-3 (Cal. Ct. App. 2007) (unpublished decision) (upholding three carjacking convictions; two children had raced ahead of their father and were about to enter the car when defendant appeared with a gun, told them to "get back," pointed the gun at their father, took the car keys and fled in the car); People v. Aguirre, 2008 WL 4983004, *11 (Cal. Ct. App. 2008) (unpublished decision) (upholding carjacking conviction as to victim who was robbed outside a taxi and told to walk away before the taxi was taken).
Mr. Mitchell identifies no California case holding that one's status as a passenger in a car for purposes of carjacking is contingent on that person having travelled, or planning to travel, any amount of distance in the vehicle. The California Court of Appeal relied on Ms. Foster's physical location (i.e., halfway in the vehicle) to determine that she was a passenger and implicitly determined that California law did not define a passenger based on the distance travelled or to be travelled for purpose of carjacking. A state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Hicks v. Feiock, 485 U.S. 624, 629 (1988). Thus, this court accepts that the law of California is that a person need not travel or intend to travel any distance before being a passenger within the meaning of the carjacking statute, California Penal Code § 215.
The California Court of Appeal's rejection of the challenge to the sufficiency of the evidence to support this carjacking conviction was not an unreasonable application of Jackson v. Virginia. The evidence supported a finding that Ms. Foster was a passenger of the vehicle at the time Mr. Mitchell took it at gunpoint. She was physically partially in the car when Mr. Mitchell pointed a gun at the driver and took the car. Ms. Foster testified she had "opened the passenger door, and was going through the glove compartment." RT 604. With the door opened, she "was leaning in over the front seat" and talking with the driver, Ms. Rice. RT 605, 640; see also RT 655 (Ms. Rice's testimony that Ms. Foster "went to the passenger's side — the front passenger's side, opened the door, and we talked, and then looked for something in the glove box that she needed"). When Ms. Foster backed away from the car after Mr. Mitchell demanded the car from the driver, the passenger side door remained open as Mr. Mitchell backed out of the driveway and sped away in the car with the passenger door still open. RT 610-11, 647.
In light of the evidence presented at trial, a rational trier of fact could have found that Ms. Foster was a passenger in the car, and that Mr. Mitchell had committed the crime of carjacking against her. The California Court of Appeal's rejection of Mr. Mitchell's challenge to the sufficiency of the evidence on this count was not an unreasonable application of Jackson v. Virginia.
A rational jury also could have found that Ms. Foster had a possessory interest in the car, although it is not necessary for a passenger to have a possessory interest to be a carjacking victim. The California Court of Appeal linked possessory interest with passenger status, but passenger status is not necessary to possessory interest. The language of the statute makes it a crime to take a vehicle from the possessor or a passenger, or both. See Hill, 23 Cal. 4th at 860. Regardless of her status as a passenger, the evidence amply supported a finding that she was a possessor of the car. Ms. Foster was not a mere bypasser who walked by a car that happened to be in the midst of being taken. Ms. Foster was the owner of the car. RT 619. The carjacking took place as Ms. Foster was looking through the glove compartment in search of a car registration and proof of insurance for an appointment she had the next day. RT 604 ("I . . . was going through the glove compartment, because I had an appointment on Coast Guard Island the following day, and I had to have proof of registration — I mean registration and proof of insurance, and I wanted to make sure those documents were in fact in the glove compartment.") Although Mr. Mitchell directed his attention at the driver and did not point the gun at Ms. Foster, the driver was Ms. Foster's girlfriend, and the gun was pointed at her girlfriend's face when Mr. Mitchell said "get out of the car." RT 608-09, 636 ("he had a gun in my girlfriend's face"). And Ms. Foster had to back away from the car, or would have been hit by, or carried away in, it as Mr. Mitchell had to back out of the driveway before speeding away. With regard to the charge that Mr. Mitchell had committed a carjacking against Ms. Foster, a rational trier of fact could have concluded that the vehicle "was taken from the immediate presence of a person who possessed the vehicle" when the evidence showed that Ms. Foster was the owner of the vehicle, Ms. Foster had the door open and was leaning into the vehicle, and Ms. Foster had to back away from the car to avoid being taken away with it at Mr. Mitchell backed out of the driveway before driving away. The evidence was sufficient to support the conviction. Mr. Mitchell is not entitled to the writ on this claim.
Mr. Mitchell contends that his Sixth Amendment right to counsel was violated when the trial court denied his four Marsden
Attorney Frank Lang was appointed to represent Mr. Mitchell on December 4, 2003. More than eighteen months into that relationship, Mr. Mitchell filed a Marsden motion against Mr. Lang. The superior court denied that motion on August 10, 2005. (Mr. Mitchell does not challenge the denial of that Marsden motion.) Mr. Lang later moved to withdraw as counsel because Mr. Mitchell had lost "confidence in him and wanted him to be replaced, that he [Mitchell] was refusing to speak to [Lang], and that they disagreed over how the defense of the matter should be handled." Mitchell, at *3. Eventually — and to the dismay of Mr. Mitchell, who by then wanted to keep Mr. Lang as his counsel — Mr. Lang's motion to withdraw was granted on October 20, 2005, and attorney Barbara Thomas was appointed as Mr. Mitchell's new attorney.
Mr. Mitchell was unhappy with Ms. Thomas' appointment. Mr. Mitchell later explained that he did not want Ms. Thomas to take the case because he thought he had a valid claim against attorney Lang that would allow him to get any eventual conviction overturned. See 11/22/05 RT 4 ("I told her if she takes my case right now it's going to hurt my case just for the fact that . . . if I was convicted, I was for sure going to get it overturned because I have paperwork on Mr. Lang, but anyway, and so I told her at that time she was going to hurt my case if she took my case."); see also id. at 12 ("When I asked her not to take the case. . . . I honestly don't want her as my lawyer.") Although the court and counsel contemplated that the case file would be turned over to Ms. Thomas immediately upon her appointment on October 20, 2005, Ms. Thomas did not receive the case file until two weeks later. See Docket No. 33 at 10-11 (10/20/05 RT 18-19).
Mitchell, at *4.
The California Court of Appeal rejected Mr. Mitchell's claim that the trial court had violated his state and federal rights by denying his several Marsden motions.
Mitchell, at *5-6.
The Sixth Amendment grants criminal defendants who can afford to retain counsel a qualified right to hire counsel of their choice. See Wheat v. United States, 486 U.S. 153, 159, 164 (1988). A criminal defendant who cannot afford to retain counsel has no right to counsel of his own choosing. See id. Nor is he entitled to an attorney who likes and feels comfortable with him. The Sixth Amendment guarantees effective assistance of counsel, not a "meaningful relationship" between an accused and his counsel. See Morris v. Slappy, 461 U.S. 1, 14 (1983). The essential aim is "to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat, 486 U.S. at 159. Nonetheless, to compel a criminal defendant to undergo a trial with the assistance of an attorney with whom he has become embroiled in irreconcilable conflict is to deprive the defendant of counsel. Daniels v. Woodford, 428 F.3d 1181, 1197 (9th Cir. 2005). "[N]ot every conflict or disagreement between the defendant and counsel implicates Sixth Amendment rights." Schell v. Witek, 218 F.3d 1017, 1027 (9th Cir. 2000) (en banc).
Under circuit precedent, the superior court must make an inquiry when a criminal defendant moves to substitute counsel based on an irreconcilable conflict with counsel. See Stenson v. Lambert, 504 F.3d 873. 886-87 (9th Cir. 2007). There is no U.S. Supreme Court precedent on the procedural steps that must be taken when a criminal defendant moves for substitution of appointed counsel based on an irreconcilable conflict with counsel, so it is doubtful that the mere failure to make an adequate inquiry into the claimed conflict could support habeas relief because the AEDPA requires this court to evaluate the state court's decision with reference only to "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1). In any event, the superior court did conduct adequate inquiries into Mr. Mitchell's concerns about his appointed counsel. See Hudson v. Rushen, 686 F.2d 826, 831 (9th Cir. 1982) (state court conducted adequate hearing when it invited defendant to make a statement and listened to defendant's reasons for wanting new counsel). The superior court made a thorough inquiry into each of Mr. Mitchell's several Marsden motions. See Docket No. 33-1 (11/22/05 Marsden hearing transcript); Docket No. 33-2 (12/12/05 Marsden hearing transcript); Docket No. 33-3 (1/3/06 Marsden hearing transcript).
The California Court of Appeal reasonably rejected the claim that Mr. Mitchell's Sixth Amendment right was violated due to an irreconcilable breakdown in the relationship between attorney and client requiring substitution of counsel.
Mr. Mitchell's primary frustration was that Ms. Thomas would not have a contact visit with him. Mr. Mitchell fails to show that the other alternative means of communication were inadequate for him to communicate with Ms. Thomas. Mr. Mitchell simply did not want to utilize another method, as is shown by his responses to the other offered methods. First, Ms. Thomas met with Mr. Mitchell in the visiting room three days after the first Marsden hearing, and they spoke through a partition that divided inmates from visitors. To alleviate Mr. Mitchell's worries that someone might be eavesdropping on their communications in the visiting room, Ms. Thomas told Mr. Mitchell that he could write his information on a piece of paper and hold it up to the partition for her to read. He did not agree to this method of communication. Second, after the court session on December 22, 2005, counsel offered to meet Mr. Mitchell in the jail upstairs from the courtroom, where they could have a meeting that was "essentially a contact meeting" and where they "would not be heard." Docket No. 33-3 at 4 (RT 168). Mr. Mitchell did not agree and instead decided he would rather return to the Santa Rita Jail on the early bus. (Id.) Third, counsel sent to Mr. Mitchell paper and stamped envelopes so Mr. Mitchell could send her letters, but Mr. Mitchell rejected written communication, professing to be "semi-illiterate." See Docket No. 33-2 at 11 (12/12/05 RT 8). Yet Mr. Mitchell was a high school graduate, see CT 1107; cogently argued his Marsden requests; and had handwritten a four-page letter to the judge requesting that the judge reconsider an earlier Marsden decision. See Docket No. 17-1 at 45-48. Especially having Mr. Mitchell's handwritten letter in front of him, the judge rightly gave little weight to any suggestion by Mr. Mitchell that he could not communicate in writing. Fourth, when Mr. Mitchell refused to meet with Ms. Thomas at the jail upstairs from the courtroom on December 22, 2005, she "told him if [she] came out to Santa Rita [Jail], it would not be a contact visit," to which he responded that she should not come to Santa Rita Jail. RT 168. Even though Ms. Thomas told Mr. Mitchell she would not travel to Santa Rita Jail to have a contact visit, she actually did try to set one up. Ms. Thomas was unable to set up a contact visit at the Santa Rita Jail due to her inability to reach someone at the jail who would set up the visit in a timely manner. RT 169-170.
The California Court of Appeal pointed out that there is no specific number of meetings that must be held between an attorney and client before trial. As that court reasonably determined, more meetings might have been better, but Mr. Mitchell had an opportunity to discuss his case with Ms. Mitchell and could have made better use of the time that his counsel did have to talk with him. The record amply supports a determination that Mr. Mitchell's behavior and unrealistic demands for a contact visit were the real cause of any shortfall in the communications between him and Ms. Thomas. The Sixth Amendment is not violated when a defendant is represented by a lawyer free of actual conflicts of interest, but with whom the defendant refuses to cooperate because of dislike or distrust. Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008); see Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008) (no relief under AEDPA for defendant who did not argue counsel had either an actual or apparent conflict of interest, and instead complained only about lack of communication with counsel and counsel's strategic decisions, including not making motions defendant requested, contacting witnesses without defendant's consent, and not providing defendant with a defense witness list for his approval): see generally Schell v. Witek, 218 F.3d at 1026 (suggesting that Sixth Amendment violation would not occur if the conflict between counsel and client was of the client's own making); Crandell v. Bunnell, 144 F.3d 1213, 1218 (9th Cir. 1998) (pre-AEDPA case) ("had the magistrate judge found that the [criminal defendant] sabotaged the relationship or failed to make reasonable efforts to develop the relationship . . . then the ruling today might be different" from the order granting relief where counsel was plainly deficient), overruled on other grounds by Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000).
In the Marsden hearings, Mr. Mitchell faulted counsel for not talking to him about his case, but the record shows that Mr. Mitchell and Ms. Thomas did talk about the case and Ms. Thomas also had a lot of information about the case based on materials in the case file obtained from attorney Lang, who earlier had communicated with Mr. Mitchell about the case. Mr. Mitchell and Ms. Thomas communicated about potential defense motions, and Mr. Mitchell was dismayed by Ms. Thomas' view of the likely futility of certain motions he wanted her to make. Ms. Thomas explained at the second Marsden hearing the various motions and strategies she had discussed with Mr. Mitchell. Mr. Mitchell wanted a suppression motion filed, but Ms. Thomas thought the motion would fail because the apartment had been searched with a valid consent from the resident or owner of the apartment. Mr. Mitchell wanted Pitchess motions filed to obtain personnel records of all law enforcement officers who had contact with a van in which his DNA was found to support his theory that the DNA evidence had been planted. Ms. Thomas explained that there were numerous law enforcement people involved and Mr. Mitchell could not identify any one of them who had reason to plant evidence against him; more importantly, regardless of the DNA evidence, Mr. Mitchell had been identified by "civilian" witnesses as the carjacker. Mr. Mitchell apparently wanted a DNA expert, and Ms. Thomas explained that Mr. Mitchell's desire for an expert to challenge the DNA evidence was inconsistent with Mr. Mitchell's insistence that the DNA had been "planted," because an argument that DNA evidence has been "planted" generally concedes that the DNA is a defendant's DNA. Mr. Mitchell apparently wanted counsel to search for alibi and other witnesses, but apparently gave her incomplete identifying information such that finding the witnesses would be very difficult. Also, Ms. Thomas intimated that the expected information from the witnesses would not be helpful to Mr. Mitchell's defense, although the transcript is less than clear on her reasoning. Ms. Thomas also explained to the court that, after talking to Mr. Mitchell, she contacted Mr. Mitchell's prior attorney, Mr. Lang, who told her that he had gone over these same points with Mr. Mitchell, and Mr. Mitchell was dismayed with his analysis as well. Ms. Thomas told the superior court that she was the messenger with the bad news for the client. The superior court accepted counsel's explanations as reasonable ones. See Docket No. 33-2 (12/12/05 Marsden hearing transcript).
The record shows that Mr. Mitchell refused to cede to the lawyer's judgment on legal questions and matters of trial strategy, if he disagreed with it. A client's erroneous view of the law that counsel does not accept does not provide a sufficient reason to discharge counsel. The client's unwillingness to let the lawyer make tactical determinations is not a legitimate reason to compel appointment of new counsel. See Schell v. Witek, 218 F.3d at 1026 & n.8. "Disagreements over strategical or tactical decisions do not rise to [the] level of a complete breakdown in communication" that amounts to a Sixth Amendment violation. Stenson v. Lambert, 504 F.3d at 886 (citing Schell, 218 F.3d at 1026).
Further, counsel was working under tight time constraints. Mr. Mitchell was under a no-time-waiver and his trial had to start by December 15, 2005 for speedy trial purposes. Ms. Thomas was appointed less than two months before trial was set to start, and received a file with about 2,000 pages of material six weeks before trial was set to start. Ms. Thomas explained to the superior court that she had a lot of documents to review, had to make witness files, and had to prepare motions in limine and jury instructions. Her efforts to prepare for trial were being hindered by a client who refused to engage in any sort of communications other than a contact visit. Also, there were no plea negotiations to discuss with the client because the prosecutor "ha[d] not made an offer and steadfastly refuse[d] to make an offer" as of December 12, 2005. Docket No. 33-2 at 23 (12/12/05 RT 20).
Mr. Mitchell argued on appeal that the superior court exceeded the bounds of law and reason when it rejected his Marsden motions as "premature." Mitchell misunderstood the judge's comment. In context, the comment meant that there was still time for the attorney to prepare the case and communicate with Mitchell. Contrary to Mitchell's intimation, the trial judge was not suggesting that a Marsden motion could not be made until after trial. That the trial judge did not reject the motion for the procedural reason that it was unripe is evident from the fact that the judge discussed the merits of Mr. Mitchell's complaints about counsel. When the trial court commented that the motion was "premature," the essence of the message was there was still time to accomplish the things the criminal defendant was faulting counsel for not doing, rather than that the court would not entertain the motion because it was too early in the proceedings for a criminal defendant to ever make such a motion. See, e.g., 11/22/05 RT at 11, 15 (trial court states that, since Ms. Thomas first received the case file with 2,000 pages three weeks ago, "she had been working on that, and that's what she should be doing. I will agree with you that it would be nice if she would come out and see you, so you guys could have a sit down, and you can tell her — from your standpoint you can give her information that she can follow up on, and I think that needs to be done right away. That sit down needs to take place so that she can get to work on that, and we can revisit this if we need to down the line a little bit, but I just think that the motion is a little premature right now because of the timing."); Docket No. 32-2 at 31 (12/22/05 hearing at which Mr. Mitchell complains he has not had a consultation with his attorney; judge responds that the next court day is "almost two weeks away, so this may be premature"); Docket No. 33-3 at 10 (1/3/06 Marsden hearing ends with judge noting that the prosecution's case is "about to start," and the defense case will not start for at least two weeks, "so there's still time to consult on what you might say if you were to say something.")
In light of the evidence presented at the Marsden hearings, the trial court could reasonably think that Mr. Mitchell's claimed conflict with counsel was almost completely due to his stubborn insistence that she meet with him in person for a contact visit and Mr. Mitchell's disagreement with Ms. Thomas' strategic decisions about the futility of certain motions he wanted presented. Bearing in mind that the "purpose of providing assistance of counsel `is simply to ensure that criminal defendants receive a fair trial,'" Wheat, 486 U.S. at 159, it was not unreasonable for the California Court of Appeal to determine that that purpose was fulfilled in this case and that no Sixth Amendment violation occurred. The California Court of Appeal's rejection of Mr. Mitchell's claim was neither contrary to nor an unreasonable application of clearly established federal law as set forth by the U.S. Supreme Court. Mr. Mitchell is not entitled to the writ on this claim.
A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in which "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a certificate of appealability is
For the foregoing reasons, the petition for writ of habeas corpus is
CT 840-41 (CALCRIM 1204 (2006 version)); see Cal. Penal Code § 209.5.
CT 837-38 (CALCRIM 1650 (2006 version)); see Cal. Penal Code § 215.
Respondent demonstrated that, at the same time he filed his Appellant's Opening Brief in the California Court of Appeal asserting the claim that the Marsden motions had been wrongly denied, Mr. Mitchell's appellate counsel had filed a motion in the California Court of Appeal to keep those portions of the Marsden transcripts "sealed as they contain confidential information not relevant to the issues on appeal." Docket No. 36-1 at 3. The California Court of Appeal found good cause to grant the motion to keep portions of the Marsden transcripts sealed, and ordered a redacted copy of the transcripts transmitted to Respondent. See Docket No. 36 at 2. Respondent explained to this Court that an unredacted copy of the redacted pages could not be obtained without an order from the California Court of Appeal.
Respondent also pointed out that the California Court of Appeal did not rely on the redacted portions of the Marsden transcripts in ruling on the claim on direct appeal. This Court agrees with Respondent's contention that this Court should not consider the redacted portion of the Marsden transcripts because the California Court of Appeal did not rely on them. See Holland v. Jackson, 542 U.S. 649, 651-53 (2004) (per curiam) (error to grant relief in disregard of state court's statement that certain evidence was not properly before it). Accordingly, this Court decides the claim without using the redacted portions of the Marsden transcripts.
