JON S. TIGAR, District Judge.
Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 by petitioner Floyd Jackson, challenging the validity of a judgment obtained against him in state court. Respondent has filed an answer to the petition.
On December 19, 2011, an Alameda County jury convicted petitioner of attempted murder, and found true allegations that he: (1) personally and intentionally discharged a firearm causing great bodily injury, and (2) was a felon in possession of a firearm. Clerk's Transcript
On October 29, 2013, the California Court of Appeal affirmed the judgment of conviction. Ex. 6.
The following summary describing the crime and evidence presented at trial is from the opinion of the California Court of Appeal:
People v. Jackson, No. A134869, 2013 WL 5806023, at *1-2 (Cal. Ct. App. Oct. 29, 2013).
A petition for a writ of habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). This Court may entertain a petition for a 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.02ee 28 U.S.C. § 2254(a).
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 courts' 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); Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Additionally, habeas relief is warranted only if the constitutional error at issue "`had substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
A state court decision is "contrary to" clearly established Supreme Court precedent if it "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases," or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent." Williams, 529 U.S. at 405-06. "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.
Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court's jurisprudence. "[C]learly established Federal law, as determined by the Supreme Court of the United States," refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. "A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme Court] is, at best, ambiguous." Mitchell v. Esparza, 540 U.S. 12, 17 (2003).
The Supreme Court has repeatedly affirmed that under AEDPA, there is a heightened level of deference a federal habeas court must give to state court decisions. See Hardy v. Cross, 565 U.S. 65, 66 (2011) (per curiam); Harrington v. Richter, 562 U.S. 86, 103-04 (2011); Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam). As the Court explained: "[o]n federal habeas review, AEDPA `imposes a highly deferential standard for evaluating state-court rulings' and `demands that state-court decisions be given the benefit of the doubt.'" Felkner, 562 U.S. at 598 (citation omitted). With these principles in mind regarding the standard and limited scope of review in which this Court may engage in federal habeas proceedings, the Court turns to petitioner's claims.
Petitioner asserts the following grounds for relief: (1) trial counsel rendered ineffective assistance by failing to adequately argue to the jury that petitioner was guilty of assault with a firearm, a lesser-included offense of attempted murder, and (2) trial counsel rendered ineffective assistance by failing to present expert testimony on the ballistics evidence. The Court addresses these claims in turn.
The Alameda County Superior Court, on state habeas, was the last state court to have reviewed the claims in a reasoned decision, and it is that court's decision that this Court reviews herein. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). The Alameda County Superior Court ruled, in relevant part, as follows:
Ex. 9.
Claims of ineffective assistance of counsel are examined under Strickland v. Washington, 466 U.S. 668 (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 on as having produced a just result." Id. at 686. In order to prevail on a claim of ineffectiveness of counsel, a petitioner must establish two factors. 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, id. at 687-88, "not whether it deviated from best practices or most common custom," Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Strickland, 466 U.S. at 690). "A court considering a claim of ineffective assistance must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance." Id. at 104 (quoting Strickland, 466 U.S. at 689).
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." Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. "The likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 112 (citing Strickland, 466 U.S. at 693). It is unnecessary for a federal court considering an ineffective assistance of counsel claim on habeas review to address the prejudice prong, i.e., the second factor of the Strickland test, if the petitioner cannot establish incompetence, as required under the first prong. Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998).
The standards of both 28 U.S.C. § 2254(d) and Strickland are "highly deferential, and when the two apply in tandem, review is doubly so." Richter, 562 U.S. at 105 (internal quotation marks and citations omitted). "[T]he question [under § 2254(d)] is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
Petitioner claims that trial counsel rendered ineffective assistance by failing to adequately argue to the jury that petitioner was guilty of assault with a firearm rather than attempted murder. ECF No. 1 at 5, 7, 45-53. In addition to raising the claim on state habeas, petitioner raised this claim on direct appeal. The California Court of Appeal issued a decision on the claim as follows:
People v. Jackson, 2013 WL 5806023, at *2-3 (footnote omitted).
This excerpt is given only for background. This Court does not evaluate the reasonableness of the court of appeal's opinion for two reasons. First, the Alameda County Superior Court's decision on state habeas came after the ruling on direct appeal, making the superior court's decision the last reasoned ruling. See Ylst, 501 U.S. at 803-04. Second the California Court of Appeal did not reach the claim "on the merits," but rather rejected the claim on the state procedural ground that ineffective assistance of counsel claims must be rejected on direct appeal where the record on appeal is silent as to counsel's reasons for the challenged course of action. Section 2254(d) only applies when the claim was "adjudicated on the merits" in state court. Where the state courts do not reach the merits of the petitioner's constitutional claim, federal habeas review is not subject to the deferential standard that applies under AEDPA. Cone v. Bell, 556 U.S. 449, 472 (2009).
On state habeas, the California Court of Appeal and California Supreme Court summarily denied petitioner's state habeas petitions. This court "look[s] through the unexplained decision[s] to the last related state-court decision that does provide a relevant rationale" and then "presume[s] that the unexplained decision[s] adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). Consequently, it is the opinion of the superior court on state habeas, excerpted above, that this Court reviews for reasonableness.
Based on a review of the record, the state court's rejection of this claim was not contrary to, and did not involve an unreasonable application of, Supreme Court precedent, and was not 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). Notably, counsel secured an instruction on assault with a firearm as a lesser-included offense of attempted murder over the prosecution's objection. RT at 447-52. Further, both during his questioning of witnesses and in his closing argument, defense counsel highlighted how the evidence did not support the prosecutor's theory of attempted murder and was more consistent with assault with a firearm.
Specifically, through defense counsel's cross-examination of police crime scene investigator Zachary Dexter, defense counsel clarified that if petitioner had stood over Mackey while he shot him six or seven times, one would expect six or seven bullet holes in Mackey's back, and would expect the bullets to either be retained in Mackey's body or, if they traveled through his body, be on the ground under his body. RT at 256-57. During closing argument, defense counsel highlighted the significance of this evidence as follows: "I asked Officer Dexter, the person was laying on the ground and I stood over and shot him in the back, you would expect the bullet to either remain in the body or be right under the body. That wasn't the case. You're asked to find attempted murder of a person that was shot in the back. It isn't there." RT at 412. Defense counsel also pointed out that Dr. Celada was unaware of the cause of certain of Mackey's injuries. RT at 416-17.
Defense counsel further argued that the evidence did not support a finding of attempted murder because petitioner had a conversation with Mackey before firing the shots, and because petitioner had the opportunity to shoot Mackey while he was helplessly lying on the ground but did not do so. Specifically, he argued, "If this was attempted murder, I don't hold a five-minute conversation with you." RT 415. Counsel proceeded, "Do I stand over you while you're down on the ground and shoot you? No." RT 415-16. Finally, defense counsel argued that the evidence did not support the theory that petitioner had continued to shoot Mackey once Mackey was lying on the ground. RT 417. As noted by the court of appeal, defense counsel argued, "Was it an attempt to kill somebody who is apparently laying helpless on the ground and I walk away from you or is this an assault? And those are the choices you're going to have to make. Is this an assault or is this an attempted murder?" RT at 417.
It is certainly true that counsel could have brought more of the ballistics evidence into his argument for assault. However, given the number of shots fired and the several wounds suffered by Mackey, counsel may have made a valid tactical decision to avoid focusing on the ballistics evidence. See Richter, 562 U.S. at 109 ("There is a strong presumption that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect."). In sum, it cannot be said that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. At a minimum, this Court cannot say the state court was unreasonable in so finding. Richter, 562 U.S. at 105.
Petitioner claims that trial counsel rendered ineffective assistance by not consulting with a ballistics expert. ECF No. 1 at 5, 55. Petitioner attaches to his petition a report prepared by Dr. Devinder Grewal, "a mechanical engineer providing accident reconstruction, failure analysis, engineering design, and laboratory/field testing services." ECF No. 1 at 73. Dr. Grewal was retained by petitioner's counsel during his state habeas proceedings. See id. After reviewing the evidence in the case, Dr. Grewal issued a report making the following conclusions:
(1) Six of the seven shots were fired downward toward the ground. The remaining shot could have been fired either into the ground or toward the truck.
(2) The tight grouping of five of the seven shots (as shown by the strike marks on the pavement), indicated that the shooter was at a close distance and aimed the gun at the ground.
(3) Given the close distance and tight aim of the shots, the shooter likely had the ability to aim and fire his shots at a different place on Mackey's body—for example, the torso or head— creating more fatal wounds than the ones actually inflicted. Id. at 78.
Based on a review of the record, and applying the standard for ineffective assistance of counsel claims outlined above, the state court's rejection of this claim was not contrary to, and did not involve an unreasonable application of, Supreme Court precedent, and was not 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). First, as noted above, counsel could have made a reasonable tactical decision not to focus on the ballistics evidence given the number of shots fired and given the severity of Mackey's injuries. A ballistics expert would also have highlighted the fact that all seven shots came from the same firearm—a fact that had been established but was not presented to the jury due to the police department's failure to deliver the information to the prosecution before trial. See RT at 309-14. Further, to the extent the defense did rely on ballistics evidence, it was not unreasonable to use the prosecution's witnesses for this purpose. Evidence was presented at trial by the emergency room physician, Dr. Roberto Celada, and the police crime scene investigator, Zachary Dexter, suggesting the possibility that most of the wounds were caused by bullets that were not fired at the victim but at the pavement and ricocheted up to hit him. Dr. Celada testified that when Mackey first came to the hospital after the shooting, he was breathing and alert, and his blood pressure and pulse indicated he had not lost a lot of blood. RT at 291-92. Dr. Celada also testified that the knee injury could have been the result of a ricochet, RT at 294-95, and the femur injury could have been caused by a piece of asphalt, RT at 305. Most importantly, Dexter testified that he found 7 cartridge casings by the side of the street and 6 "strike marks" on the asphalt pavement and asphalt debris on the victim's truck, showing that 6 of the shots likely first hit the pavement. RT at 197, 233, 241-42, 245-46. Dexter also opined on the location of the shooter. RT at 233, 246-47. Finally, as noted above, on cross-examination Dexter testified that if the shooting victim had been lying on the ground when shot, either the bullets would be found lodged in his body or on the ground where he had been lying. RT at 256-57. Dexter had training and experience in gunshot trajectory and shooting reconstruction. RT at 168-73, 215-16.
While it is certainly true that counsel could have bolstered the ballistics evidence by obtaining an outside expert, it cannot be said that counsel's decision to rely on the prosecution's witnesses and/or downplay the ballistics evidence fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. At a minimum, this Court cannot say the state court was unreasonable in rejecting this claim. Richter, 562 U.S. at 105.
Finally, although counsel certainly could have done more with the ballistics evidence, the Court does not find a reasonable probability that, but for counsel's failure to do so, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. It was not contested that petitioner fired seven shots and that at least one directly hit Mackey. Mackey was walking to his truck when he was shot from behind. RT at 77-79, 255, 294, 331. After he fell, he slid under his truck. RT at 78-79, 139, 166. Mackey was not carrying a gun or any other weapon that would have caused petitioner to believe that he needed to act in self-defense. RT at 75-76, 234-35.
Mackey was shot in his shoulder, femur, thigh, buttocks, and kneecap, and a bullet grazed his calf. Several bullets went through his body, and others remained in his body. RT at 98-99, 293-96. He needed two surgeries and was scheduled for a third surgery at the time of trial. RT at 98-99, 297-98.
In the end, it was not surprising that many of the bullets first struck the ground given that Mackey had taken shelter under his truck. Although several shots did not hit Mackey directly, they were certainly aimed toward him and still caused serious injuries. That they may have hit the pavement before injuring Mackey does not establish that it was petitioner's intent to strike only the pavement. If petitioner had intended only to scare Mackey off, he could have easily done so by firing one shot into the air. At some point, petitioner must have observed that the bullets were hitting Mackey, and yet petitioner continued to shoot. Given the number and direction of the shots alone, regardless of additional ballistics evidence and/or argument, a jury could reasonably conclude that some shots simply missed Mackey as Mackey took shelter under his truck or even that, having hit Mackey once, petitioner was less able to hit his mark as asphalt debris obscured the target and as petitioner became concerned with fleeing the scene. In sum, additional focus on the ballistics would not have necessarily undermined a finding of intent to kill. At a minimum, the Court cannot say the state court was unreasonable in finding that petitioner was not prejudiced by counsel's performance. Richter, 562 U.S. at 105.
Accordingly, petitioner is not entitled to habeas relief on his ineffective assistance of counsel claims.
For the reasons stated above, the petition for a writ of habeas corpus is DENIED.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a certificate of appealability ("COA") under 28 U.S.C. § 2253(c) is GRANTED as to both claims. The Court finds that reasonable jurists viewing the record could find the Court's assessment of the claims "debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The COA does not obviate the requirement that petitioner file a notice of appeal within
The Clerk shall enter judgment in favor of respondent and close the file.
Additionally, the Clerk is directed to substitute Shawn Hatton on the docket as the respondent in this action.
