CHARLENE H. SORRENTINO, District Judge.
Petitioner, Kulwant Singh Gadri, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an aggregate sentence of 170 years to life plus life with the possibility of parole following his 2008 jury convictions in the San Joaquin County Superior Court for six counts of attempted premeditated murder, with penalty enhancements as to each of the six counts for personal and intentional discharge of a firearm during the commission of the crimes, infliction of great bodily injury, and use of a firearm while committing or attempting to commit a felony. In addition, the jury found Petitioner guilty of a seventh count of attempted premeditated murder, with penalty enhancements as to that count for personal and intentional discharge of a firearm during the commission of that crime and for use of a firearm in the commission of a felony or attempted felony, as well as an eighth count for discharging a firearm from a motor vehicle. Here, Petitioner challenges the constitutionality of his convictions.
Petitioner presents two grounds for relief. Specifically, the claims are as follow:
Based on a thorough review of the record and applicable law, it is recommended that both of Petitioner's claims be denied.
The relevant facts of Petitioner's crime were summarized in the unpublished opinion of the California Court of Appeal, Third Appellate District, as follows:
Lodged Doc. 18 at 2-6.
Following a jury trial, Petitioner was convicted of seven counts of attempted premeditated murder, CAL. PENAL CODE §§ 187/664, and one count of discharging a firearm from a motor vehicle, CAL. PENAL CODE § 12034. As to six of the attempted premeditated murder counts, the jury found true penalty enhancements for the discharge of a firearm during the commission of those crimes, CAL. PENAL CODE § 12022.53(d), infliction of great bodily injury while committing or attempting to commit a felony, CAL. PENAL CODE § 12022.7, and the use of a firearm while committing or attempting to commit a felony, CAL. PENAL CODE § 12022.5(a). As to the seventh count of attempted premeditated murder, the jury found true penalty enhancements for discharge of a firearm during the commission of that crime, CAL. PENAL CODE § 12022.53(c), and for use of a firearm in the commission of a felony or attempted felony, CAL. PENAL CODE § 12022.5 (a).
Petitioner was sentenced to life with the possibility of parole on all seven attempted premeditated murder counts. He was sentenced to six consecutive terms of twenty-five years to life with respect to the section 12022.53(d) penalty enhancements, as well as to a consecutive twenty year term with respect to the section 12022.53(c) enhancement. Sentencing was stayed on count eight, discharging a firearm from a motor vehicle, and on all remaining penalty enhancements. Thus, Petitioner received an aggregate sentence of 170 years to life, plus life with the possibility of parole.
Petitioner timely appealed his convictions to the California Court of Appeal, Third Appellate District. Prior to that court's ruling on his appeal, Petitioner also filed a petition for writ of habeas corpus in the San Joaquin County Superior Court. Habeas corpus relief was denied by that court on April 6, 2009. Petitioner filed a motion for reconsideration of the superior court's denial on April 16, 2009. The court denied his motion on May 7, 2009. Petitioner once again sought habeas corpus relief in the San Joaquin County Superior Court and, once again, relief was denied with a short, but reasoned, opinion on July 16, 2009. Petitioner then sought habeas corpus relief in the California Court of Appeal, Third Appellate District. The court denied relief without comment on August 21, 2009. He then petitioned the California Supreme Court for review of the appellate court's decision, and the petition was denied without comment on November 10, 2009. Petitioner's direct appeal was denied with a reasoned opinion by the state appellate court on March 8, 2010. The pending federal petition for writ of habeas corpus was filed on October 1, 2010. Respondent filed its answer on April 8, 2011, and Petitioner filed his traverse on April 19, 2011. This matter is submitted for decision and both parties have consented to jurisdiction by a United States Magistrate Judge.
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
28 U.S.C. § 2254(d). See also Penry v. Johnson, 531 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
Petitioner claims that trial counsel rendered prejudicially ineffective assistance by failing to take the steps necessary to secure Amrit Pal as a defense witness at trial. Petitioner argues that had Amrit Pal's testimony would have raised reasonable doubt with regard to whether eyewitnesses had accurately identified Petitioner and Pardeep as the shooters at Sansar Restaurant on the evening of May 14, 2006. According to Petitioner, counsel had a constitutional duty to request the judge who presided over the February 22, 2007 preliminary hearing to order Amrit Pal to be present at the arraignment on the Information which was to take place on June 6, 2007. In addition, Petitioner contends that counsel had a constitutional duty to request a continuance during trial after a warrant had issued for Amrit Pal through his father so that he could be presented as a defense witness.
The Sixth Amendment to the United States Constitution guarantees to a criminal defendant the effective assistance of counsel. A showing of ineffective assistance of counsel has two components. See Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must demonstrate that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. In assessing an ineffective assistance of counsel claim, "[t]here is a strong presumption that counsel's performance falls within the `wide range of professional assistance,'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689), and that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). As the United States Supreme Court recently emphasized, the question for a federal court conducting habeas corpus review under section 2254(d) "is not whether counsel's actions were reasonable." Harrington v. Richter, 131 S.Ct. 770, 788 (2011). "The standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Id. (internal quotations and citations omitted). The determination to be made, therefore, is not whether counsel acted reasonably, but "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
The second factor required for a showing of ineffective assistance of counsel is actual prejudice caused by the deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "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. See also Williams v. Taylor, 529 U.S. 362, 391-92 (2000); Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). Importantly, on collateral review, a court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 697).
The San Joaquin County Superior Court considered and rejected Petitioner's ineffective assistance of counsel claim on collateral review, explaining as follows:
Lodged Doc. 5 at 1-3.
The state court's rejection of Petitioner's ineffective assistance of counsel claim was not contrary to or an unreasonable application of clearly established federal law. Petitioner has failed to overcome the significant burden of demonstrating that trial counsel's performance fell below professionally acceptable standards. Indeed, the Ninth Circuit has held that ineffective assistance cannot be demonstrated by counsel's failure to call a witness where, inter alia, there was no evidence in the record that the witness would testify. United States v. Harden, 846, F.2d 1229, 1231-32 (9th Cir. 1988). Petitioner has not directed the court to any evidence that Amrit Pal would have testified at trial. In fact, the record indicates that Amrit Pal would not testify — despite the issuance of a subpoena for his appearance, six continuances granted in order to obtain his presence, and the ultimate issuance of a warrant in an attempt to obtain Amrit Pal's appearance through his father. Thus, under the circumstances of this case, and for the reasons expressed by the state court, it appears that trial counsel satisfied Strickland's extremely deferential standard. Petitioner is not entitled to federal habeas corpus relief on this claim..
Petitioner claims that he has discovered new evidence that critically undermines the reliability of the prosecution's case against him and "points to" his innocence. It thus appears that Petitioner contends that the newly discovered evidence demonstrates that he stands factually innocent of the crimes for which he was convicted.
The United States Supreme Court has expressly left open the question of whether a claim of actual innocence in a non-capital case is cognizable on federal habeas corpus review. Dist. Attorney's Office for the Third Judicial Dist. V. Osborne, 129 S.Ct. 2308, 2321 (2009) (Whether there exists a federal right to be released upon proof of actual innocence is an open question.). In several cases, the Court has assumed, without deciding, that a freestanding claim of actual innocence is cognizable under federal law. Herrera v. Collins, 506 U.S. 390, 400 (1993). See also Jackson v. Calderon, 211 F.3d 1148, 1165 (9th Cir. 2000) (noting that a majority of the Justices in Herrera would have found a freestanding claim of actual innocence); House v. Bell, 547 U.S. 518, 554-51 (2006) (declining to resolve whether federal courts may entertain independent claims of actual innocence but concluding that the petitioner's showing of innocence in that case fell short of the threshold suggested in Herrera). Likewise, the Ninth Circuit has assumed that claims of actual innocence are cognizable for federal habeas corpus relief and has articulated a minimum standard of proof applicable to such claims. Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997). Accordingly, "a habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Id. at 476-77 (citing Herrera, 506 U.S. at 442-44). In such a case, the petitioner's burden is "extraordinarily high" and requires a demonstration that is "truly persuasive." Id. at 476 (quoting Herrera, 506 U.S. at 417). See also Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999) (denying federal habeas corpus relief where "the totality of the new evidence [did] not undermine the structure of the prosecution's case"); Swan v. Peterson, 6 F.3d 1373, 1384-85 (9th Cir. 1993) (denying habeas corpus relief where newly discovered evidence did not contradict materially the evidence presented at trial, did not demonstrate that States' evidence was false, and was merely equivocal).
The San Joaquin County Superior Court considered and rejected Petitioner's claim that newly discovered evidence demonstrates his innocence on collateral review, explaining as follows:
Lodged Doc. 5 at 3-4.
To the extent that Petitioner asserts an actual innocence claim herein, he is not entitled to federal habeas corpus relief because, as noted above, the United States Supreme Court has expressly left open the question of whether an actual innocence claim based on newly discovered evidence constitutes grounds for relief. Absent federal authority establishing that an actual innocence claim is cognizable for federal habeas corpus review, the state court's rejection of Petitioner's actual innocence claim based on newly discovered evidence cannot be contrary to or an unreasonable application of clearly established federal law. See Carey v. Musladin, 549 U.S. 70, 77 (2006) ("Given the lack of holdings from the Court regarding the [issue in dispute,] it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" (quoting 28 U.S.C. § 2254(d)(1))); Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) ("If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law." (citation omitted)).
Moreover, even assuming that Petitioner's claim is cognizable on federal habeas corpus review, he is not entitled to relief because the evidence he presents does not affirmatively prove that he is probably innocent of the crimes for which he was convicted. As noted by the state court, Petitioner's newly discovered evidence consists merely of affidavits from witnesses who support their statements with nothing more than hearsay. As the United States Supreme Court has observed, affidavits based on hearsay are particularly suspect because they are not subject to cross-examination or credibility determinations. Herrera, 506 U.S. at 417. These affidavits do not establish the requisite probability that, had those witnesses testified at his trial, "it is more likely than not that no reasonable juror would have convicted him . . . ." Schlup v. Delo, 513 U.S. 298, 327 (1995). Petitioner is thus not entitled to federal habeas corpus relief on the basis of newly discovered evidence.
Petitioner contends that the cumulative effect of the errors at trial, discussed above, deprived him of his right to due process and rendered his trial fundamentally unfair.
In some cases, the combined effect of multiple trial errors may give rise to a due process violation if the trial was rendered fundamentally unfair, even where each alleged error considered individually would not require reversal. Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Donnelly v. Dechristoforo, 416 U.S. 637, 643 (1974); Chambers v. Mississippi, 410 U.S. 284, 290 (1973)). The fundamental question in determining whether the combined effect of trial errors violated a defendant's due process rights is whether the errors rendered the criminal defense "far less persuasive," Chambers, 410 U.S. at 294, and thereby had a "substantial and injurious effect or influence" on the jury's verdict. Parle, 505 F.3d at 927 (quoting Brecht, 507 U.S. at 637).
"[C]umulative error analysis should evaluate only the effect of matters determined to be error, not the cumulative effect of non-errors." United States v. Rivera, 900 F.2d 1462, 1471 (9th Cir. 1990). As discussed above, Petitioner has suffered no errors of a federal constitutional magnitude. Thus, there is no combined effect of errors to be reviewed. Petitioner is not entitled to federal habeas corpus relief on this claim.
For the foregoing reasons, the petition for writ of habeas corpus is hereby DENIED. If Petitioner wishes to appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b). A certificate of appealability may issue under 28 U.S.C. § 2253 "if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3). A certificate of appealability should be granted for any issue that Petitioner can demonstrate is "`debatable among jurists of reason,'" could be resolved differently by a different court, or is "`adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In this case, Petitioner failed to make a substantial showing with respect to any of the claims presented. A certificate of appealability is therefore DENIED. See 28 U.S.C. § 2253(c)(2).
Accordingly, IT IS HEREBY ORDERED that:
