JAMES DONATO, District Judge.
Petitioner, a state prisoner, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner presents three claims regarding ineffective assistance of appellate counsel: (1) failure to adequately address a jury instruction issue in the reply brief on direct appeal; (2) failure to challenge the two-strike sentence; and (3) failure to challenge the five-year sentence enhancement. For the reasons set forth below, the petition is denied.
After a jury trial, petitioner was found guilty of first degree murder which was modified by the trial court to second degree murder. Clerk's Transcript ("CT") at 651, 722-30. Petitioner was sentenced to 36 years to life in state prison. CT at 752-55. Petitioner appealed, and the California Court of Appeal affirmed the judgment in an unpublished opinion. People v. McGinnis, No. A130252, 2011 WL 5520231 (Cal. Ct. App. 2011). The California Supreme Court denied review.
Petitioner filed a state habeas petition with the Contra Costa Superior Court, asserting the same claims he is asserting in this petition, which was denied in a reasoned opinion. Petition, Attachment B.
Petitioner filed this federal petition for writ of habeas corpus on March 8, 2013. The Court issued an order to show cause why the petition should not be granted. Respondent filed an answer, and petitioner filed a traverse.
The California Court of Appeal summarized the facts as follows:
Lodged Exh. 6 at 2-7.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court may consider 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 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 Supreme] 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.
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. Strickland v. Washington, 466 U.S. 668, 686 (1984). The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. 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. See Smith v. Robbins, 528 U.S. 259, 285 (2000); Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). The benchmark for judging any claim of ineffectiveness is 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. Strickland v. Washington, 466 U.S. at 668.
Under the Strickland test, a federal habeas petitioner must establish two things: (1) that counsel's performance was deficient because it fell below an "objective standard of reasonableness" under prevailing professional norms; and (2) that petitioner was prejudiced by counsel's deficient performance, that is, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-88, 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
The Strickland framework for analyzing ineffective assistance of counsel claims is considered to be "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 Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011); Williams (Terry) v. Taylor, 529 U.S. 362, 404-08 (2000). Because of the difficulty in evaluating counsel's performance, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Petitioner testified at trial but was unable to explain some details about the evidence presented against him. Just prior to closing arguments, the trial court instructed the jury with CALCRIM No. 361:
RT at 1370. Petitioner argued on appeal that this instruction damaged his defense to the point of prejudice because it effectively violated his Fifth and Fourteenth Amendment rights to testify in his defense and to a fair trial, respectively, and that the instruction was not supported by the evidence in this case. The appeal was denied.
In this federal petition, petitioner claims that appellate counsel only addressed case law, and not the trial record specifically, in his opening brief on direct appeal. However, on pages 24 and 25 of Appellant's Opening Brief (Lodged Exh. 3), appellant counsel specifically mentioned and cited to the Reporter's Transcript of the petitioner's trial testimony. The brief summarized testimony, including petitioner learning that his wife, the victim, was still engaged in an affair; that she insulted petitioner and told him how good the sex was with the other man; and that she threw a dumbbell at petitioner. Appellate counsel further argued in the brief that, had the jury been properly instructed, this evidence could have reasonably led to a verdict lesser than that of first degree murder. Lodged Exh. 3 at 24-25. Additionally, appellate counsel argued that even though petitioner could not recall every single moment of the night in question, his testimony was corroborated by other witnesses, specifically expert witnesses. Id. at 25. The California Court of Appeal denied the jury instruction claim in a detailed reasoned opinion on direct appeal. McGinnis, 2011 WL 5520231 at *4-7. The Superior Court for Contra Costa County in denying petitioner's habeas petition found that, "[o]n appeal counsel made a strong argument regarding an error in jury instructions. Success would have meant reversal of the judgment." Petition, Attachment B.
Petitioner's argument in his federal habeas petition is that, in addition to an inadequate opening brief, appellate counsel filed an inadequate reply brief. Specifically, he failed to reply to respondent's rebuttal in the reply brief. Petition at 23. In appellant's reply brief, counsel simply stated that, "[a]ppellant's position on this issue is fully explicated in his opening brief." Lodged Exh. 5 at 1. Petitioner also points to counsel's failure to cite to expert witness testimony regarding the injuries to the victim's face and to the state of the bathroom. Petition at 15.
To satisfy the first prong of Strickland, petitioner must show that that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687. With regard to the jury instruction issue, counsel did, in fact, adequately address this issue in petitioner's opening brief. He not only cited case law, but also referred directly to trial testimony that he believed made the instruction inappropriate for trial.
Petitioner claims that a failure to further expound the issue in the reply brief constituted ineffective assistance of counsel. A reply brief is not a critical element in evaluating ineffective assistance. U.S. v. Birtle, 792 F.2d 846, 848 (9th Cir. 1986). In addition, petitioner has not identified any arguments that, had they been included in the reply brief, would have changed the outcome of this appeal under the second prong of Strickland. Jury instruction CALCRIM 361 specifically addressed petitioner's testimony. Petitioner argues that his testimony was sufficient to explain or deny the evidence against him and that, even if it was not, expert testimony corroborated his testimony. CALCRIM 361 applies solely to the defendant's testimony and any failure to explain or deny evidence against him therein. Therefore, this argument is unpersuasive. On direct appeal, the California Court of Appeal found ". . . in the record some evidentiary support for [CALCRIM 361]." Specifically, the court found that:
McGinnis, 2011 WL 5520231, at *7. Even if the instruction had been given erroneously, the instruction was not enough to taint the entire trial and unduly prejudice the defendant. A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the deficient instruction by itself so infected the entire trial that the resulting conviction violates due process. Id. at 72. Petitioner has failed to meet this high threshold.
Moreover, the California Supreme Court in People v. Saddler rejected that CALJIC 2.62, a jury instruction similar to CALCRIM 361, may result in jury prejudice. 24 Cal.3d 671 (1979); People v. Rodriguez, 170 Cal.App.4th 1062, 1067 (Cal. Ct. App. 2009). In Saddler, the court explained a defendant's due process rights are not violated by CALJIC 2.62 because the instruction contains cautionary language reminding the jury of the presumption of innocence. Saddler, 24 Cal. 3d at 679-80 (quoting CALJIC 2.62: "the failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt"). See also Stanton v. Janda, 2013 WL 789085, at *41-47 (E.D. Cal., March 1, 2013) (CALCRIM 361 which allows the jury to draw an adverse inference did not violate Supreme Court authority).
Petitioner claims that appellate counsel should have challenged the doubling of his sentence based on a prior strike. Petitioner believes that this sentencing enhancement, which was applied because of his prior 1987 conviction for assault with a deadly weapon, violated his 1987 plea bargain. Petitioner also argues that the prosecutor failed to plead and prove the prior as being a serious felony qualifying a strike.
The Supreme Court has held that, "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971). Upon review of the plea bargain in question, there is no evidence of an agreement in which the plea could not be used as a sentence enhancement and/or strike in the case of another felony conviction. Petition at 103-105. Appellate counsel does not have a constitutional duty to raise every non-frivolous issue requested by defendant. Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997).
In this case, appellate counsel did not address the two-strike sentencing enhancement. If he had, the claim would have arguably been frivolous because of the lack of a promise by the prosecutor that the conviction resulting from the 1987 plea bargain could not be used to enhance a sentence for a future felony conviction. Petitioner argues that his prior conviction should have been pled and proved by the prosecutor in this case to be a violent and/or serious felony. Upon reviewing the trial record, it is apparent that petitioner admitted to the prior assault with a deadly weapon in his testimony, and that defense counsel made no objection to admitting the criminal complaint and subsequent conviction into evidence. RT at 999, 1222-23, 1451-53. This claim is denied.
Petitioner argues that appellate counsel was ineffective in failing to raise a challenge to the five-year sentence enhancement. Petitioner relies on People v. Jones in arguing that the two-strike doubling and five-year enhancement cannot both be applied to his sentence. 5 Cal.4th 1142 (1993). Petitioner misunderstands that case. In People v. Jones, the California Supreme Court ruled that sentence enhancements could not be applied under both California Penal Code Section 667 and California Penal Code Section 667.5. Id. at 1149-53. Those sections, respectively, refer to sentence enhancements for prior convictions and prior prison terms. While both sections are designed to increase sentences for recidivist offenders, no dual sentence enhancement may be applied under both sections. Id. In the instant case, petitioner has been sentenced according to California Penal Code section 667(a)(1) and 667(e). These sentence enhancements only increase his sentence based upon his prior serious felony, and not any prison term he may have served.
Moreover, California Penal Code section 667(e) clearly explains that any sentence enhancement under that subsection shall apply, "in addition to any other enhancement or punishment provisions which may apply." Cal. Penal Code § 667(e). California courts have held that a prior serious or violent felony can be used as both a five-year prior enhancement and a strike. People v. Nelson, 42 Cal.App.4th 131, 136-37 (Cal. Ct. App. 1996). Petitioner seems to concede that this is a serious felony, since he was convicted of assault with a deadly weapon, and California courts would agree. See People v. Delgado, 43 Cal.4th 1059, 1065 ("a conviction under the deadly weapon prong of section 245(a)(1) is a serious felony, but a conviction under the [great bodily injury] prong is not."). As appellate counsel would have not prevailed on a claim, he was not ineffective for failing to raise it. Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). This claim is denied.
The petition for writ of habeas corpus is
