SUSAN ILLSTON, District Judge.
Tommy Eugene Thomas filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. § 2254. The matter is now before the court for consideration of the merits of the habeas petition. For the reasons discussed below, the petition will be denied.
Following a jury trial in Monterey County Superior Court, Thomas was found guilty of assault with a deadly weapon
The California Court of Appeal described the evidence relating to the crime at length, and then engaged in an unusually detailed harmless error analysis of the self-defense theory which it considered to be a "patchwork of highly improbable inferences" and a "tortured labyrinth of unlikelihoods proffered by the defense." Resp. Ex. C, California Court of Appeal Opinion ("Cal. Ct. App. Opinion") at 23.
Cal. Ct. App. Opinion at 2-8.
Thomas has urged in his federal petition for writ of habeas corpus that he received ineffective assistance of counsel in that trial counsel (a) failed to present evidence that two people saw the victim with a knife several months earlier, (b) failed to prevent the prosecution from introducing evidence that Thomas had not asserted a self-defense claim immediately following the assault, and (c) failed to challenge the validity of the search of his house. Respondent has filed an answer and Thomas has filed a traverse.
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Monterey County, California, within this judicial district. 28 U.S.C. §§ 84, 2241(d).
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute that the state judicial remedies were exhausted for the claims in the petition.
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] 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.
"When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85 (2011) (one-sentence order denying habeas petition analyzed under §2254(d)). Neither party disputes that the state appellate court's one-sentence denial of the habeas petition amounted to a rejection of Thomas' claims on the merits.
The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The purpose of the right is to ensure a fair trial, and 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 on as having produced a just result." Id. To prevail on an ineffective assistance claim, a habeas petitioner must show that (1) counsel's performance was "deficient," i.e., his "representation fell below an objective standard of reasonableness" under prevailing professional norms, id. at 687-88, and (2) prejudice flowed from counsel's performance, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different, see id. at 691-94.
A "doubly" deferential judicial review is appropriate in analyzing ineffective assistance of counsel claims under § 2254. See Cullen v. Pinholster, 131 S.Ct. 1388, 1410-11 (2011). The "question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 131 S. Ct. at 788. As the claim was rejected by the California Court of Appeal without explanation, this court "must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 786.
Although the defense presented some evidence at trial that the stabbing victim had carried a knife in his pocket in the past, Thomas now faults defense counsel for not presenting additional evidence on the point. The evidence that was presented was Thomas' testimony that he was aware that Kevin Thissel usually carried a knife. See RT 285-86, 293, 297, 302-03. Thomas also testified that he had seen Kevin Thissel, who was in the construction trade, use the knife as part of his work to cut sheetrock. RT 304-05. The other item of evidence presented was a stipulation that, if called as a witness, Calvin Mitchell "would testify that he had seen Kevin Thissel with a box cutter blade approximately six months before this incident." RT 305. In his habeas petition, Thomas urges that defense counsel should also have (a) presented evidence that, when Calvin Mitchell saw Kevin Thissel with the knife/box cutter, it was at Thomas' house and (b) called Thomas' girlfriend, Sheila Castillo, to testify that she had seen Kevin Thissel "with a folding pocket knife with a blade approximately four-inches long at Mr. Thomas's house during the summer of 2006." See Traverse, Ex. C.
Trial counsel prepared a declaration for the state habeas proceeding regarding the claim. Counsel stated that he did not call Sheila Castillo to testify because "she seemed almost too eager to testify" and he did not think she would be credible. Counsel also thought that Kevin Thissel's demeanor and testimony showed him to have committed violent acts in the past. See Traverse, Ex. A.
The California Court of Appeal's rejection of this ineffective assistance claim was not contrary to or an unreasonable application of Strickland. That court reasonably could have determined that there was no deficient performance in not presenting the evidence, which was both stale and weak because the two witnesses had seen Kevin Thissel with a knife at least six months before the stabbing, but neither witness knew whether Kevin Thissel carried the knife on an ongoing basis or on the day Thomas stabbed him. Also, counsel had made a tactical decision not to call Sheila Castillo as a witness because he perceived that she lacked credibility. Counsel may have chosen not to pursue the evidence from Calvin Mitchell because the stipulation was more favorable than his testimony might have been with respect to its staleness (i.e., the stipulation was that he had seen the knife six months earlier yet the investigator's notes indicated it was six to twelve months earlier) even though it would have added the detail that it was at Thomas' house that Mitchell saw Kevin Thissel with the knife. See Brodit v. Cambra, 350 F.3d 985, 994 (9th Cir. 2003) (state court reasonably concluded that trial attorney provided effective assistance of counsel where attorney declined to present evidence favorable to defense out of concern that it would open door to unfavorable evidence).
It also would have been reasonable for the California Court of Appeal to conclude that Thomas' claim failed on the prejudice prong of Strickland. The additional evidence was of limited value due its staleness and mostly cumulative nature. The fact that Kevin Thissel was seen with a knife at Thomas' house made little difference, as that sighting was many months earlier and did not involve him brandishing the weapon. Also, Thomas did not testify that he actually saw a knife in Kevin Thissel's hand or pocket before he stabbed him with the fork. The omitted evidence was only marginally relevant to whether Thomas had reason to believe that Kevin Thissel was carrying a knife when Thomas stabbed him.
The California Court of Appeal's harmless error analysis for Thomas' other claims applies equally to the ineffective assistance of counsel claims.
Thomas urges that trial counsel should have done something in response to the prosecutor's argument that Thomas' silence and failure to mention self-defense at the time of his arrest was evidence of his guilt. He claims that counsel should have objected to the evidence under California Evidence Code section 352 because, in Thomas' view, his silence was not inconsistent with his claim of self-defense. See Docket # 1 at 6. In his traverse, he argues that counsel should have presented evidence that, in a recorded telephone call from jail a day or two after the arrest, Thomas had mentioned self-defense to his girlfriend, Sheila Castillo.
Trial counsel provided a declaration for the state habeas proceeding in which he stated that he had a strategic reason for not objecting to the prosecutor's reference to Thomas' post-arrest silence: "I did not want to emphasize it to the jury. My goal was to persuade the jury that Mr. Thomas could not have been expected to make a complete and accurate statement at that time because he was suffering the effects of a concussion. I do not recall whether I was aware there might have been a foundational objection to the prosecutor's line of argument." Traverse, Ex. A. As to the jail telephone call recording, trial counsel declared that he did not bother to get the jail telephone call recordings between Thomas and Castillo because doing so might prompt the prosecutor to listen on other calls and those might have had incriminating evidence.
The California Court of Appeal reasonably could have determined that there was no deficient performance in light of the evidence of trial counsel's stated strategic reason. Thomas does not show why it would have been unreasonable for counsel to avoid further emphasis on Thomas' failure to claim self-defense when his defense theory was that Thomas had suffered a concussion that muddled his thinking.
The California Court of Appeal opinion indirectly addressed the jail telephone call recording in a footnote to its discussion about the meritlessness of the self-defense argument. The court explained that such a recording "would only establish that defendant mentioned the self-defense claim well after the fact-long enough to calm down and consider the seriousness of his situation. It was his failure to refer to self-defense at the scene that the prosecutor justly identified as incriminating." Cal. Ct. App. Opinion at 23 n.15. Further reducing the value of the evidence was the fact that Thomas was aware that jail telephone calls were recorded. See RT 294. Thus, the California Court of Appeal reasonably could have found no deficient performance or prejudice on the failure to introduce the recorded telephone call.
The California Court of Appeal also reasonably could have used the same reasoning discussed in Section A, above, to determine that there was not a reasonable likelihood that the result of the proceedings would have been different had counsel objected to the evidence and argument that Thomas had not asserted a self-defense claim when arrested and had counsel presented the jail telephone call recording.
Thomas urges that counsel was ineffective in failing to move to suppress evidence obtained during a search that he contends was conducted before the search warrant was signed by a judicial officer. Thomas points out that the search warrant was signed at 12:25 a.m. on February 5, 2007, yet officer Borges said in the sworn search warrant return that he conducted the search on February 4, 2007, and Sheila Castillo (Thomas' girlfriend) would have corroborated that the search occurred at 11:30-11:45 p.m. on February 4, 2007. Thomas contends that, had the search been challenged, the jury would not have learned that he had ammunition and gun holsters in his home.
To prevail on the claim that trial counsel failed to litigate a Fourth Amendment claim competently, a petitioner must demonstrate "that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
The California Court of Appeal's rejection of this ineffective assistance of counsel claim was not contrary to, or an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court. The California Court of Appeal reasonably could have determined that counsel did not engage in deficient performance in not moving to suppress the evidence obtained during the search. There was a conflict in officer Borges' statements, but it was a conflict that easily could have been explained, i.e., he could have been mistaken as to the date due to the fact that the events occurred in the two-hour window surrounding midnight when the date changed from February 4 to February 5. Although officer Borges stated in the sworn search warrant return dated March 1, 2007 — more than three weeks after the search — that he had searched the house on February 4, 2007, he also stated that he had received the attached warrant issued by the judge on February 4, 2007. See Docket # 1 at 10. At least the latter statement was plainly wrong, as the warrant was issued at 12:25 a.m. on February 5, 2007, although it had been applied for sometime after 10:00 p.m. on February 4, 2007. Also, there is no strong evidence that Borges searched the house before the warrant was signed by the judge. Officer Borges testified that he "believe[d] at about 11:45 is when [the judge] reviewed and signed [his] search warrant," RT 216, and that he and other officers "executed the search warrant at about 30 minutes past midnight," RT 218. Thomas now presents evidence that, when interviewed twenty months after the fact, Sheila Castillo thought the search occurred between 11:30-11:45 p.m., without any explanation of how she had made note of the time. See Docket # 14 at 11. Counsel already had doubts about Sheila Castillo's credibility and may have had further doubts about her estimating abilities twenty months after the incident. Further, a distracting collateral issue may have arisen about Castillo's credibility on the search of the house: police officers stated they saw her in Thomas' house, whereas she denied having entered the house. Compare RT 62 with Docket # 14 at 11. Finally, even if the ammunition and holsters had been suppressed, there was other evidence that Thomas had guns: Sidney Thissel testified that Thomas had guns in the house, and Kevin Thissel thought Thomas had a gun, although he did not see it that night.
Although the California Court of Appeal's opinion did not discuss the ineffective assistance claim, that court's analysis of a different claim regarding a severance motion also demonstrates that the court reasonably could have concluded that there was no reasonable probability that the result of the proceedings would have been different had counsel moved to suppress the evidence obtained during the search of the house, assuming counsel would have been successful on such a motion. The state appellate court observed that the evidence obtained during the search actually may have helped Thomas on the attempted murder and attempted voluntary manslaughter charges he also faced. The "most likely explanation for [the acquittals on attempted murder and attempted voluntary manslaughter] is that the jury was unable or unwilling to find that defendant acted with the requisite intent to kill when he stabbed Kevin with the barbecue fork. One fact clearly casting that element in doubt was defendant's apparent access to guns. Given the evidence that guns had been in the house very recently — in all likelihood, at the time of the stabbing — defendant would presumably have used something more suitable than a barbecue fork if he had intended to kill Kevin." Cal. Ct. App. Opinion at 9-10 (footnote omitted). The California Court of Appeal also flatly rejected any notion that "a jury not exposed to evidence of holsters and ammunition would have entertained a reasonable doubt as to whether defendant acted in self-defense." Cal. Ct. App. Opinion at 11. Even if the evidence was excluded, the jury would have heard testimony from Sidney Thissel that Thomas had guns in the house, and from Kevin Thissel that he was sure that Thomas had a gun. See id. And even without the gun evidence, the self-defense theory was "extremely weak in its own right," as it required the jury to reject the prosecution's theory that Thomas had attacked Kevin Thissel "in a rage flowing from the injury and humiliation" he had suffered in their earlier fist fight and required the jury to accept the self-defense theory that "could avoid logical incoherence only with the aid of a number of dubious inferences and highly indulgent suppositions." Id. at 13, 14. The weakest links in the self-defense theory were the lack of logical and credible explanations for why he chased after Kevin Thissel, why he "suddenly formed the reasonable belief that Kevin was about to attack him, so as to justify what was in effect a preemptive strike," and how he happened to have the barbecue fork with him when he caught up to Kevin Thissel. Id. at 14-20.
Finally, although Thomas thinks counsel did an inadequate job, Thomas fails to note that he (Thomas) fared very well in light of the circumstances. In a case in which he chased after the victim and admittedly stabbed the victim with the barbecue fork, and in which he was charged with attempted murder, he ended up with only a misdemeanor assault conviction. Counsel's hand in obtaining that result for him should not be ignored.
Giving the state court's decision the deference to which it is entitled under § 2254(d)(1), this court cannot say the rejection of the three ineffective assistance of counsel claims was contrary to or an unreasonable application of clearly established federal law as set forth by the Supreme Court.
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).
The petition for writ of habeas corpus is denied on the merits.
The clerk will close the file.
