JAMES K. SINGLETON, JR., Senior District Judge.
Doshmen Johnson, a state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Johnson is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at California State Prison, Sacramento. Respondent has answered, and Johnson has replied.
On August 27, 2008, Johnson was charged with the murder of Perry Steele. The information additionally alleged as enhancements that Johnson intentionally committed the murder by discharging a firearm from a vehicle, that the murder was committed for the benefit of a criminal street gang, and that Johnson personally discharged a firearm, causing death. Johnson pleaded not guilty, denied the special allegations, and proceeded to a jury trial. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Johnson and the evidence presented at trial:
People v. Johnson, No. C063252, 2011 WL 4906741, at *1 (Cal. Ct. App. Oct. 11, 2011).
At the conclusion of deliberations, the jury found Johnson guilty of first-degree murder and also found true all the special allegations. The trial court sentenced Johnson to life imprisonment without the possibility of parole ("LWOP") for the murder with the discharge of a firearm from a motor vehicle enhancement, plus 25 years to life imprisonment for the personal discharge of a firearm causing death enhancement, plus 10 years' imprisonment for the gang enhancement.
Through counsel, Johnson appealed his conviction, arguing that: 1) the trial court erroneously admitting portions of a MySpace page, alleged to belong to Johnson, which the prosecution argued supported the gang enhancement; 2) the evidence was legally insufficient to support the jury's guilty verdict on the murder charge; and 3) the imposition of the criminal conviction fee assessment, authorized by statute effective after the offense date, violated his protection against Ex Post Facto laws.
Johnson then filed in the Superior Court a counseled petition for habeas relief. In that petition, Johnson claimed that: 1) trial counsel was ineffective for failing to present cell phone records which Johnson claimed would have shown that he was not at the scene of the shooting; 2) newly-discovered evidence demonstrated that he was actually innocent; 3) the newly-discovered evidence, corroborated by the cell phone record data, warranted an order to show cause and an evidentiary hearing; 4) the admission of "cumulative, inflammatory and prejudicial gang evidence" from the MySpace account deprived Johnson of his right to a fair trial; and 5) the LWOP sentence, which was imposed for an offense occurring when Johnson was 17 years old, violated the Eighth Amendment. In a reasoned opinion, the superior court denied Claims 1 through 4 but ordered Respondent to show cause with respect to Claim 5. Respondent conceded that Johnson's sentence violated U.S. Supreme Court precedent, and the court vacated the sentence for re-sentencing in a manner consistent with Miller v. Alabama, 567 U.S. 460 (2012).
Again proceeding through counsel, Johnson filed a petition for habeas relief in the Supreme Court of California. In that petition, Johnson again argued that: 1) trial counsel was ineffective for failing to present cell phone records which Johnson claimed would have shown that he was not at the scene of the shooting; 2) newly-discovered evidence demonstrated that he was actually innocent; and 3) the newly-discovered evidence, corroborated by the cell phone record data, warranted an order to show cause and an evidentiary hearing. After ordering and obtaining an informal response by Respondent, the California Supreme Court summarily denied the habeas petition on April 27, 2016.
Johnson then filed a counseled Petition for a Writ of Habeas Corpus to this Court on June 17, 2016, the timeliness of which Respondent does not contest. See 28 U.S.C. § 2244(d)(1)(A). That Petition is now before the undersigned judge and ripe for adjudication.
In his counseled Petition before this Court, Johnson argues that trial counsel provided ineffective assistance by failing to present cell phone records which Johnson claims would have shown that he was not at the scene of the shooting.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000 ).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Johnson raises a single claim on federal habeas review: that trial counsel was ineffective for failing to present cell phone records which, he alleges, would have shown that he was not at the scene of the shooting. To demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id.
The Supreme Court has explained that, if there is a reasonable probability that the outcome might have been different as a result of a legal error, the defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S.Ct. 1376, 1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice standard is applied and federal courts do not engage in a separate analysis applying the Brecht harmlessness standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v. Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
Thus, Johnson must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the petitioner fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not address both prongs if the defendant fails on one).
Johnson raised his ineffective assistance of counsel claims in counseled habeas petitions filed in the California Superior and Supreme Courts. The "last reasoned decision" addressing the claim is the Superior Court's denial:
Docket No. 20-2 at 8-10.
The record additionally indicates that the cell phone issue arose when Johnson moved post-verdict for a new trial and to replace his trial counsel pursuant to Marsden.
Docket No. 19-5 at 238-40.
In his counseled Traverse, Johnson argues that counsel's statements at the hearing should be disregarded because they "were not evidence and were not at all reliable." Putting aside the fact that Johnson fails to establish that the states courts improperly relied on counsel's hearing statements, particularly given that the superior court's denial rested on shortcomings in the proposed evidence rather than on counsel's reasons for declining to present it, such argument wholly ignores that this court is required to "strongly presume[]" that counsel made such decision in the exercise of his professional judgment. See Strickland, 466 U.S. at 690; see also Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (recognizing a strong presumption that counsel took actions "for tactical reasons rather than through sheer neglect"). The state court's determination that Johnson failed to provide sufficient evidence to overcome the presumption neither contravened nor unreasonably applied federal law. Given its shortcomings, as detailed in the superior court's thorough denial of Johnson's claim, the state court reasonably found that the evidence in the exhibits attached to Johnson's Petition was of insufficient exculpatory value to demonstrate that counsel was ineffective. Johnson is not entitled to relief on this claim.
Johnson is not entitled to relief on any ground raised in his Petition.
The Clerk of the Court is to enter judgment accordingly.
