JAMES DONATO, District Judge.
Kevin Lipscomb, a pro se state prisoner, has brought a habeas petition pursuant to 28 U.S.C. § 2254. The Court ordered respondent to show cause why the writ should not be granted. Respondent filed an answer and a memorandum of points and authorities in support of it. Petitioner filed a traverse. The petition is denied.
Petitioner was found guilty of evading a police officer with willful and wanton disregard for the safety of persons and property, possession of a firearm by a felon, discharging a firearm from a motor vehicle, and assault with a semiautomatic firearm. Clerk's Transcript ("CT") at 339-42. The trial court also found true the enhancement allegations for prior felony convictions, prior serious felony convictions, and prior prison terms. Id. at 198-99, 486. Lipscomb was sentenced to 67 years to life in prison. Id. at 517.
The California Court of Appeal ordered the restitution fine reduced to $10,000, but affirmed the judgment in all other respects. People v. Lipscomb, No. A128549, 2012 WL 2519057, at *1 (Cal. Ct. App. June 29, 2012). The California Supreme Court denied review on September 12, 2012. Answer, Ex. 9. Lipscomb has since filed several state habeas petitions, all of which were denied. Answer, Exs. 10-14.
The California Court of Appeal summarized the relevant facts of the underlying crime as follows:
Lipscomb, 2012 WL 2519057, at *1-3 (footnote omitted).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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). The first prong applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only 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, 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly identifies the 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. The federal court on habeas review 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." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 409.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." See Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Moreover, in conducting its analysis, the federal court must presume the correctness of the state court's factual findings, and the petitioner bears the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The state court decision to which § 2254(d) applies is the "last reasoned decision" of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion. See Nunnemaker at 801-06; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).
As grounds for federal habeas relief, Lipscomb asserts that: (1) counsel was ineffective for failing to challenge the victim's identification and the trial court erred by admitting this suggestive identification; and (2) the trial court erred by failing to hold a competency hearing and counsel was ineffective for failing to request a competency hearing and not moving to suppress his statement to police.
Lipscomb argues that counsel was ineffective for failing to challenge the victim's identification and that the trial court improperly admitted the evidence.
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 benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland, 466 U.S. at 687-88. Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
"A conviction which rests on a mistaken identification is a gross miscarriage of justice." Stovall v. Denno, 388 U.S. 293, 297 (1967). Thus, the Constitution "protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit." Perry v. New Hampshire, 132 S.Ct. 716, 723 (2012) (citing rights to counsel, compulsory process, confrontation, cross-examination, as examples).
Due process requires suppression of eyewitness identification evidence "when law enforcement officers use an identification procedure that is both suggestive and unnecessary." Id. at 718; see Manson v. Brathwaite, 432 U.S. 98, 107-09 (1977); Neil v. Biggers, 409 U.S. 188, 196-98 (1972). The purpose of this rule is "to deter police from rigging identification procedures." Perry, 132 S. Ct. at 721.
The California Court of Appeal denied the claim that counsel was ineffective:
Lipscomb, 2012 WL 2519057, at *4-5.
The California Court of Appeal reasonably applied Strickland in ruling that Lipscomb was not prejudiced by counsel's failure to object to the identification evidence. It is clear an objection to the identification would not have produced a different result. Even without Mr. Lee's identification, there was a wealth of other evidence that could have easily led to his conviction. The state court noted the other eyewitnesses, the confession, and the physical evidence implicating Lipscomb. To be entitled to habeas relief, Lipscomb must have made it clear that the likelihood of a different result in his trial is not just "conceivable," but "substantial." Harrington v. Richter, 562 U.S. 86, 112 (2001). The likelihood of a different result without Mr. Lee's identification is not even conceivable, let alone substantial. Accordingly, Lipscomb is not entitled to habeas relief on this claim.
The California Court of Appeal also found that the trial court did not err in admitting the identification evidence:
Lipscomb, 2012 WL 2519057, at *5.
The Supreme Court has made it clear that a defendant is not necessarily entitled to exclude unreliable testimony from the record entirely. So long as the defendant is afforded the "means to persuade the jury that the evidence should be discounted as unworthy of credit," due process has not been violated. Perry, 132 S. Ct. at 723. Lipscomb was afforded such means to challenge the creditworthiness of Mr. Lee's identification. The circumstances of the identification were presented to the jury, and on cross-examination and closing argument trial counsel directly called into doubt the reliability of the identification. Reporter's Transcript ("RT") at 220-23; 1032-36. Lipscomb was not denied his due process rights when Mr. Lee's identification was admitted because he was given the opportunity to discredit the identification.
Even if pretrial identification procedures violated the Due Process Clause, that error must still be analyzed for harmlessness under the standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), to determine if the error had a "substantial and injurious effect or influence on the jury's verdict." See Williams v. Stewart, 441 F.3d 1030, 1038-39 (9th Cir. 2006) (considering allegedly unconstitutional pretrial identification procedure, and analyzing for harmlessness under Brecht); see also Johnson v. Sublett, 63 F.3d 926, 928-29 (9th Cir. 1995) (prejudice from unreliable identification may be mitigated by cross-examination and other courtroom safeguards); Simmons v. United States, 390 U.S. 377, 384 (1968) (danger that photo lineup technique may result in conviction based on misidentification may be lessened by cross-examination at trial).
Even if it were an error to admit the evidence, Lipscomb cannot demonstrate that it had a detrimental effect upon his defense. The California Court of Appeal reasonably applied established constitutional law in denying this claim, and the admission of the identification evidence did not have a substantial and injurious effect upon his defense. As discussed above, the remaining incriminating evidence against Lipscomb was overwhelming. This claim is denied.
Lipscomb next argues that the trial court erred in failing to hold a competency hearing and that counsel was ineffective for failing to raise the issue and not moving to have Lipscomb's statement to the police suppressed.
The test for competence to stand trial is whether the defendant demonstrates the ability "to consult with his lawyer with a reasonable degree of rational understanding" and a "rational as well as factual understanding of the proceedings against him." Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v. United States, 362 U.S. 402 (1960) (per curiam)); Douglas v. Woodford, 316 F.3d 1079, 1094 (9th Cir. 2003). The question "is not whether mental illness substantially affects a decision, but whether a mental disease, disorder or defect substantially affects the prisoner's capacity to appreciate his options and make a rational choice. . . ." Dennis v. Budge, 378 F.3d 880, 890 (9th Cir. 2004).
Due process requires a trial court to order a psychiatric evaluation or conduct a competency hearing sua sponte if the court has a good faith doubt concerning the defendant's competence. Pate v. Robinson, 383 U.S. 375, 385 (1966). This responsibility continues throughout trial. Drope v. Missouri, 420 U.S. 162, 181 (1975).
A good faith doubt about a defendant's competence arises if "a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial." Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010) (quoting de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976) (en banc)); see, e.g., Stanley v. Cullen, 633 F.3d 852, 860-61 (9th Cir. 2011) (not unreasonable for trial court to conclude there was not enough evidence before it to raise a doubt about defendant's competence to have sua sponte held a hearing where defendant made some questionable choices in strategy and acted oddly but defense counsel specifically informed trial court several times that they had no doubt about defendant's competency to assist them and defendant was coherent in his testimony and colloquies with the court); Cacoperdo v. Demosthenes, 37 F.3d 504, 510 (9th Cir. 1994) (denial of motion for psychiatric evaluation did not render trial fundamentally unfair where petitioner made single conclusory allegation he suffered from mental illness).
Several factors are relevant to determining whether a hearing is necessary, including evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial. Drope, 420 U.S. at 180. "In reviewing whether a state trial judge should have conducted a competency hearing, we may consider only the evidence that was before the trial judge." McMurtrey v. Ryan, 539 F.3d 1112, 1119 (9th Cir. 2008). The failure of petitioner or his attorney to request a competency hearing is not a factor in determining whether there is a good faith doubt in the defendant's competency. Maxwell, 606 F.3d 574 (trial judge has an "independent duty" to hold competency hearing if there is a good faith doubt).
The claim that the trial court erred by not holding a competency hearing was presented in a state habeas petition to the San Francisco County Superior Court, which was the last court to issue a reasoned decision. The Superior Court denied the claim stating:
Ex. 11 at 1-2.
In this case, the state court found that Lipscomb failed to provide sufficient evidence that a competency hearing was necessary or that he was mentally incompetent at trial. "In reviewing whether a state trial judge should have conducted a competency hearing, we may consider only the evidence that was before the trial judge." McMurtrey, 539 F.3d at 1119.
Lipscomb presents no evidence to support his assertion that he was incompetent at the time of the trial. The majority of evidence he presents occurred well after his trial and was therefore unknown by the trial court. He identifies no interactions with counsel or the court that should have called his competency into question. The trial began on December 9, 2008, and ended on January 14, 2009. Lipscomb, 2012 WL 2519057 at *4; RT at 1083-94. Lipscomb argues that his psychiatric disorder became clearly apparent on March 17, 2010, while in San Francisco County Jail. Answer, Ex. 10 at 126 of 256. The remainder of his evidence consists of prison medical records dated 2010 and later. The only reference to any mental problems prior to 2010 is a note in a prison medical report that Lipscomb had been hospitalized in June 2007 in the jail psychiatric services section. Answer, Ex. at 141 of 256. There is no additional information regarding this incident nor is it alleged that the trial court was aware of it, and Lipscomb presents no arguments how this incident 18 months prior to trial, supports his assertion of incompetency at trial.
Moreover, on December 8, 2008, a day before the trial commenced, Lipscomb testified at a hearing on a motion to suppress his statement. Answer, Ex. 3 at 139, 159-78. The transcripts of the hearing reflect competent testimony, in that he understood the questions being asked and he provided thoughtful answers. Id.; see, e.g., Benson v. Terhune, 304 F.3d 874, 885-86 (9th Cir. 2002) (testifying in one's own defense is the "quintessential act of participating in one's own trial" and a defendant's "lengthy, logical and cogent trial testimony reflects a sufficient ability to understand the proceedings and to assist in her own defense")
Lipscomb presents no evidence that he was mentally impaired at the time of his trial. His conclusory arguments with no support are insufficient to establish any indicia of incompetence. This claim is denied because he has failed to demonstrate that the state court opinion was an unreasonable determination of the facts or an unreasonable application of Supreme Court authority.
The San Francisco Superior Court also denied the claim that trial counsel was ineffective for failing to request a competency hearing and not moving to suppress the statement to police:
Ex. 11 at 5.
Counsel's failure to request a competency hearing violates the Sixth Amendment right to effective assistance of counsel only when "there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant's competency, and there is a reasonable probability that the defendant would have been found incompetent to stand trial had the issue been raised and fully considered." Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (quoting Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001)).
Lipscomb offers no evidence that he was mentally impaired at the time of his trial that could establish sufficient indicia of incompetence. When evaluating counsel's performance for effective assistance purposes, counsel's performance should be "viewed as of the time of counsel's conduct," and not after the fact. Strickland, 466 U.S. at 690. Counsel could not possibly have concluded that Lipscomb was incompetent to stand trial from incidents that took place at times far outside of the trial, or from Lipscomb's statements and conduct during trial. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691.
Lipscomb testified competently at the motion to suppress hearing and also competently addressed the court to make a motion for a new trial and new counsel and to request a hearing regarding the assistance of his second appointed counsel. RT at 1091-93, 1097-99. None of these interactions indicated any reason to doubt Lipscomb's competency. As such, the state court's decision was not unreasonable.
Nor was counsel ineffective for failing to move to suppress the statement to police pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Counsel did seek to suppress the statement on the grounds that it was obtained as a result of Lipscomb's unlawful arrest and detention and that the statement was involuntary. CT at 52-63; RT at 55-131, 141-81. The record also indicates that Lipscomb waived his Miranda rights at the beginning of his interview with police. CT at 272. Counsel thus made a reasonable tactical decision not to raise a motion citing Miranda and instead challenge the statement through other means. Lipscomb has failed to demonstrate that counsel was ineffective for failing to move to suppress the statement or that he was prejudiced because the motion, had it been made, would most certainly have been denied. Accordingly, he is not entitled to relief on this claim.
1. The petition for writ of habeas corpus is
2. Petitioner's motion to appoint counsel (Docket No. 24) is
