REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
WILLIAM V. GALLO, District Judge.
Petitioner Ebrahim Mussa Mohamed, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254 challenging his convictions in San Diego County Superior Court for five counts of assault with a deadly weapon and one count of stalking.
The Court has read and considered the Petition, Respondent's Answer, Petitioner's Traverse, and all of the lodgments filed. For the reasons discussed below, the Court
The Court gives deference to state court findings of fact and presumes them to be correct. 28 U.S.C. §2254(e)(1). However, a petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. Id.; see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The following facts are taken from the California Court of Appeal opinion:
(Lodgment 8, ECF No. 35-8 at 2-3.)
A. STATE COURT PROCEEDINGS
On June 28, 2012, Petitioner was convicted of five counts of assault with a deadly weapon and one count of stalking. (Lodgment 1, ECF No. 35-1 at 146-151.) On July 30, 2012, Petitioner filed a direct appeal with the California Court of Appeal. (Lodg. 1 at 122.) On November 19, 2013, Petitioner petitioned the California Supreme Court to review whether a defendant must expressly waive his or her right to testify. (Lodgment 9, ECF No. 35-9.) The California Supreme Court denied the petition for review on January 14, 2014, without comment or citation to authority. (Lodgment 10, ECF No. 35-10.) On June 26, 2015, Petitioner filed a petition for habeas corpus with the California Supreme Court. (Lodgment 11, ECF No. 35-11.) This petition was summarily denied without comment or citation to authority on September 30, 2015. See In re Mohamed, 2015 Cal. Lexis 7248.
B. FEDERAL COURT PROCEEDINGS
On March 30, 2015, Petitioner filed a Petition for Writ of Habeas Corpus. (Petition, ECF No. 1.) Petitioner simultaneously filed a Motion to Stay. (ECF No. 2.) The Petition was dismissed without prejudice, allowing Petitioner until June 15, 2015, to submit proof of his inability to pay filing fees. (ECF No. 3.) Petitioner filed a Motion for Leave to Proceed In Forma Pauperis on May 20, 2015. (ECF No. 4.) The Court reopened the matter after granting the motion. (ECF No. 5.) On June 3, 2015, Petitioner's motion seeking a stay of his Petition to allow him time to exhaust his claims in state court was renewed. (ECF No. 9.) The Court issued a Report and Recommendation on February 3, 2016, recommending a denial of Petitioner's motion to stay. (ECF No. 21.) On March 7, 2016, the Honorable Roger T. Benitez, issued an order adopting the Report and Recommendation and denied Petitioner's Motion to Stay. (ECF No. 22.) On July 27, 2016, Respondent filed an Answer to the Petition, (Answer, ECF No. 34,) and lodged numerous state court records, (Lodgments, ECF No. 35). Petitioner timely filed a Traverse on September 12, 2016, (ECF No. 36,) and filed an Amended Traverse on January 23, 2017, (ECF No. 40). Having found further briefing necessary
STANDARD OF REVIEW
The Petition is governed by provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by a state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination, rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); see also Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). To prevail, a petitioner must establish that "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement." Burt v. Titlow, ___ U.S. ___, ___, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013).
A federal habeas court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the "unreasonable application" clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be "objectively unreasonable." See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The Court may also grant relief if the state court's decision was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the last reasoned state court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" the state court decision will not be "contrary to" clearly established federal law. Id. Clearly established federal law, for purposes of § 2254(d), means "the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision." Andrade, 538 U.S. at 72.
Petitioner raises four grounds for relief in his Petition. He contends: (1) the trial court erred by not obtaining Petitioner's express waiver of right to testify; (2) ineffective assistance of appellate counsel; (3) ineffective assistance of trial counsel; and (4) that Petitioner's sentence is illegal due to insufficient evidence. (Pet. at 6-9.)
Express Waiver of Right to Testify
Petitioner contends that the trial Court violated his Fifth, Sixth, and Fourteenth Amendment rights by failing to obtain his express waiver of right to testify. (Pet. at 6.) In support of this argument, Petitioner claims he was never provided a required notice of waiver and did not knowingly waive his right to testify, as required, citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 S.Ct. 1461 (1938). Moreover, Petitioner argues that his trial counsel misled him into a false belief that Petitioner could not disregard the advice of his attorney and testify on his own behalf. (Traverse, ECF No. 36 at 4-5.) Respondents argue a trial court has no duty to affirmatively inform defendants of their right to testify. (Ans. at 4:23-25.)
On direct appeal to the California Court of Appeal, Petitioner similarly argued that his Constitutional right to testify was violated because the trial court did not obtain his express waiver of that right. (See ECF No. 35-6 at 10-13.) The court of appeal concluded the trial court did not err by not obtaining Petitioner's express waiver of his right to testify. (ECF No. 35-8 at 6.) Petitioner then filed a Petition for Review in the California Supreme Court, which summarily denied his petition. See In re Mohamed, 2015 Cal. Lexis 7248. The last reasoned state court decision, which addresses the merits of the claim, is the California court of appeal's opinion. It is to that decision this Court must direct its analysis. See Ylst, 501 U.S. at 805-06.
The court of appeal found the following facts regarding Petitioner's waiver of his right to testify:
(Lodg. 8 at 4.)
The court of appeal reasoned:
express waiver of his right to testify. (Id. at 5-6.)
The court of appeal did not rule contrary to or unreasonably apply clearly established federal law nor was the decision based on an unreasonable determination of the facts. A defendant in a criminal case has a fundamental Constitutional right to testify on his or her own behalf. See Rock v. Arkansas, 483 U.S. 44, 49-52 (1987). However, the Supreme Court has never held that a court has an affirmative duty to obtain an express waiver of the right to testify. On the contrary, courts have found that trial courts are not required to affirmatively inform a defendant of his or her right to testify, or to inquire whether they wish to exercise that right. See United States v. Edwards, 897 F.2d 445, 447 (9th Cir. 1990) (holding that a defendant waived his right to testify where "[n]either the prosecution nor the court was given any reason to think the defendant desired to testify"). A waiver of the right, however, may be implied. "A defendant who wants to reject his attorney's advice and take the stand may do so, by insisting on testifying, speaking to the court, or discharging his lawyer." United States v. Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir. 1999) (internal quotation omitted). "When a defendant remains silent in the face of his attorney's decision not to call him as a witness, he waives the right to testify." Id.
A thorough review of the record indicates that Petitioner made no attempt to reject his attorney's advice and to testify on his own behalf. However, the record does indicate that Petitioner was aware he could address the trial court, even against the advice of his attorney. Indeed, Petitioner interrupted the trial court sentencing proceeding, requesting to be heard. (Lodg. 5 at 4:24-25.) The following exchange occurred between the trial court, Petitioner, and Petitioner's defense counsel, Ms. Oliver, on the record during Petitioner's sentencing hearing:
(Lodg. 5 at 9:4-10:4.) After further discussion, the trial court noted that Petitioner raised both a Marsden motion and a motion for a new trial based on ineffective assistance of counsel.
This exchange indicates a number of things to the Court. First, it demonstrates that Petitioner was aware he could address the court directly, and was willing to address the court when he felt it necessary. Second, it indicates that Petitioner was aware that he could do so against the advice of counsel. Lastly, it indicates Petitioner was aware he could request leave to discharge his counsel if a fundamental disagreement occurred. Given this, had Petitioner wished to testify in his own defense, he could have alerted the trial court of this desire or raised a Marsden motion at a point prior to his sentencing hearing. Having not done so, neither the prosecution nor the court was given any reason to think the defendant desired to testify, and thus, Petitioner waived his right to testify.
Petitioner's reliance on Johnson is misplaced. While Johnson does discuss valid waiver, that waiver is in regards to waiving ones right to be represented by counsel in a criminal trial, not waiver of a right to testify. Johnson, 304 U.S. at 463-469.
For the foregoing reasons, the state court's denial of this claim was neither contrary to nor an unreasonable application of clearly established Supreme Court law. Petitioner is not entitled to relief as to this claim.
Ineffective Assistance of Trial Counsel
The Court will direct its attention to Petitioner's third claim of relief for ineffective assistance of trial counsel before addressing his second claim, ineffective assistance of appellate counsel. This is so because, in this particular instance and explained further below, Petitioner must be successful in his claim of ineffective assistance of trial counsel in order to succeed on his ineffective assistance of appellate counsel claim. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); see also Moormann v. Ryan, 628 F.3d 1102, 1107 (9th Cir. 2010) ("If trial counsel's performance was not objectively unreasonable or did not prejudice [the petitioner], then appellate counsel did not act unreasonably in failing to raise a meritless claim of ineffective assistance of [trial] counsel, and [the petitioner] was not prejudiced by appellate counsel's omission."). Petitioner claims his trial counsel's performance fell below constitutional requirements because his trial counsel failed to properly explain Petitioner's exposure if found guilty, failed to properly investigate alleged illegal activity by the police department, and that his trial counsel was vindictive in violation of American Bar Association ethics codes. (Pet. at 18-22.) Petitioner argues that had his trial counsel conducted a proper investigation, there exists a possibility that witnesses may have produced contradictory statements. (Pet. at 19:13-24.) Respondent argues the trial court was reasonable in rejecting Petitioner's claim of ineffective assistance of counsel. (Ans. At 6:25-26.)
Petitioner first raised his ineffective assistance of trial counsel claim during his trial. (Lodg. 5 at 9-10.) Petitioner then similarly argued his trial counsel fell below the constitutional requirements because his trial counsel [REDACTED\] [REDACTED\].
Petitioner did not raise the ineffective assistance of trial counsel claim on direct appeal nor on petition for review with the California Supreme Court. Petitioner raised his ineffective assistance of trial counsel claim in his Petition for Habeas Corpus in the California Supreme Court, which summarily denied his petition without comment or citation to authority. See In re Mohamed, 2015 Cal. Lexis 7248. The last reasoned state court decision, which addresses the merits of the claim, is the decision made by the San Diego Superior Court. It is to that decision this Court must direct its analysis. See Ylst, 501 U.S. at 805-06.
When the trial court inquired about Petitioner's claim that his trial counsel [REDACTED\], Petitioner's counsel offered the following explanation:
(Sealed Lodg. at 14:29-15:19.)
When the trial court inquired about Petitioner's claim that his trial counsel [REDACTED\], Miss Oliver offered the following testimony:
(Id. at 15:22-16:6.)
In denying both motions, the trial court reasoned as follows:
(Id. at 23:7-24:9.)
The trial court made the following conclusion in regards to the performance of trial counsel:
(Lodg. 5 at 14:10-15.)
The trial court did not rule contrary to or unreasonably apply clearly established federal law nor was the decision based on an unreasonable determination of the facts. The clearly established United States Supreme Court law governing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984); see also Baylor v. Estelle, 94 F.3d 1321, 1323 (9th Cir. 1996). The Supreme Court has explained the Strickland inquiry as follows:
Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal citations and quotation marks omitted).
"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." Strickland, 466 U.S. at 686. The likelihood of a different outcome must be "substantial," not merely "conceivable," Richter, 562 U.S. at 112, and when Strickland and AEDPA operate "in tandem," as here, the review must be "doubly" deferential, id. at 105. "When [Section] 2254(d) applies, 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." Id.
Applying this doubly deferential standard, the Court concludes Petitioner has failed to meet his burden. After hearing testimony from Petitioner regarding his complaints and the extensive testimony of Petitioner's trial counsel the state court reasonably concluded Ms. Oliver's conduct was [REDACTED\] and that she [REDACTED\] [REDACTED\] (Sealed Lodg. at 23:7-24:9.) Petitioner has offered no argument that the trial court was unreasonable in its determination. Moreover, Petitioner fails to establish he was prejudiced by his trial counsel's performance. Petitioner's lone argument that there existed the possibility that favorable information may be discovered is highly speculative and does not begin to approach the requirement that the likelihood of a different outcome be substantial.
Petitioner has failed to show the trial court was unreasonable in determining his trial counsel performed at the level required by the Constitution, and has failed to show he was prejudiced by his trial counsel. Thus, Petitioner is not entitled to relief as to this claim.
Ineffective Assistance of Appellate Counsel
Petitioner's second claim is ineffective assistance of appellate counsel. Petitioner argues his appellate counsel failed by not raising the claim of ineffective assistance of trial counsel. (Pet. at 13.) Respondent argues the state court reasonably rejected this claim because the underlying allegation of ineffective assistance of trial counsel was unmeritorious. (Ans. At 7:3-7.)
In order to prevail on such a claim, Petitioner must show that his appellate counsel unreasonably failed to raise a merit-worthy claim on appeal and that this failure prejudiced Petitioner. Smith v. Robbins, 528 U.S. at 285; see also Moormann, 628 F.3d at 1106 (9th Cir. 2010) ("First, the petitioner must show that counsel's performance was objectively unreasonable, which in the appellate context required the petitioner to demonstrate that counsel acted unreasonably in failing to discover and brief a merit-worthy issue. Second, the petitioner must show prejudice, which in this context means that the petitioner must demonstrate a reasonable probability that, but for appellate counsel's failure to raise the issue, the petitioner would have prevailed in his appeal."). The Court may consider either Strickland prong, and need not address both if Petitioner fails one. Strickland, 466 U.S. at 697. "If trial counsel's performance was not objectively unreasonable or did not prejudice [the petitioner], then appellate counsel did not act unreasonably in failing to raise a meritless claim of ineffective assistance of [trial] counsel, and [the petitioner] was not prejudiced by appellate counsel's omission." Moorman, 628 F.3d at 1107.
Having already found that Petitioner's trial counsel was not objectively unreasonable nor was his trial counsel's performance prejudicial to Petitioner, Petitioner's appellate counsel "did not act unreasonably in failing to raise a meritless claim of ineffective assistance of counsel" claim. Moorman, 628 F.3d at 1107. Therefore, Petitioner is not entitled to relief as to this claim.
Petitioner titles his fourth claims as an "Illegal Sentence PC 245(a)(1)". (Pet. at 24:2.) However, a thorough reading of Petitioner's argument reveals that he is claiming the evidence presented was insufficient to support the charge of assault with a deadly weapon. (Id. at 24-27.) Additionally, Petitioner asserts there "was no `physical' harm done," his actions were simply the actions of "childishness" against a lover, that the proper charge should have been vandalism, and that the damage done was not consistent with assault with a deadly weapon. (Id. at 24-25.) Petitioner requests the Court to reduce the severity of his charged offense. (Id. at 27:18-21.) Respondents argue that Petitioner's conduct did indeed amount to assault with a deadly weapon as defined in California Penal Code, Section 245(a)(1) and was reasonably rejected by the state court. (Ans. 7:10-20.)
Petitioner's claim that there was insufficient evidence is a state law claim. "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. at 68. Relief pursuant to habeas corpus is "unavailable for alleged error in the interpretation or application of state law." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) Further, the crimes in which a defendant is charged by a state prosecutor does not raise a federal question. White v. Wilson, 399 F.2d 596, 599 (9th Cir. 1968) (finding that the charging of a prior felony conviction raised no federal question); see also Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990) (finding that federal courts "have no authority to review a state's application of its own laws"). Given this, Petitioner is only entitled to federal habeas corpus relief for this claim if the alleged violation of state law denied Petitioner his due process right to fundamental fairness. Estelle, 502 U.S. at 71-2 (1991). However, "the Due Process clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules." Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983).
Petitioner identifies no potential due process violations regarding the evidence admitted at trial. Rather, Petitioner seems to question the jury's decision to convict based on the evidence presented at trial and attempts to re-argue his case. Since this claim is a state law matter and Petitioner has identified no potential due process violations, Petitioner is not entitled to relief as to this claim.
For the aforementioned reasons, the Court