Opinion
No. C 98-4517 CRB (PR)
December 17, 2003
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
INTRODUCTION
Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging the validity of his guilty plea in the Superior Court of the State of California in and for the County of Monterey. He claims that his plea was coerced and involuntary and that he received ineffective assistance of counsel. After an evidentiary hearing on the timeliness of his petition, the court found that petitioner was entitled to equitable tolling of his claims and ordered respondent to show cause why a writ of habeas corpus should not be granted. The court had previously reviewed the petition for a writ of habeas corpus and found that the claims therein are cognizable under § 2254. Respondent filed an answer and petitioner filed a traverse in response.
STATEMENT OF THE FACTS
On August 6, 1989, 23-year-old Sonjii Yvette Johnson ("Sonjii" or "decedent") was killed when she was shot five to six times in the upper torso while seated in the driver's seat of a car parked in the driveway of her home in Seaside, California. Sonjii's brother, Bobby Johnson, Jr. ("Bobby Jr.") was a passenger in the car at the time of the shooting and was shot in the left hip, likely from a bullet that passed through the decedent. The bullet lodged near Bobby Jr.'s spine and was never removed.Sonjii and Bobby Jr. knew petitioner because he was a friend of their brothers, Frederick and Anthony, and he occasionally dated Sonjii.
In his post-plea interview on November 16, 1990, petitioner admitted that he shot Sonjii and wounded Bobby Jr. because he felt that Sonjii had betrayed him. He found out on the "street" that Sonjii was giving information to the police that incriminated him in other crimes. Petitioner admitted that on the day of the murder, he and another person had been out driving and looking for Sonjii. They followed her car several blocks until she pulled into the driveway of her residence. Petitioner instructed the driver of the car to go to the park near Sonjii's house. Petitioner then exited the vehicle and walked towards Sonjii's house. Sonjii had just parked the car in her driveway when petitioner approached the driver side of the vehicle and fired a.357 caliber revolver through the driver's window. After he finished firing into the vehicle, he ran out into the street towards the park. When he first started to run, he looked back at the vehicle and saw Bobby Jr. coming out of the vehicle. Petitioner stated that at the time of the murder he was wearing all dark clothing including a ski mask, a hooded sweat shirt, gloves, and dark pants. See Resp. Ans. Ex 3, p. 2-3.
STATEMENT OF THE CASE
The Monterey County District Attorney charged petitioner with one count of murder in the first degree (Cal. Pen. Code § 187), two special circumstances: murder of a witness and lying in wait (Cal. Pen. Code §§ 190.2(10) (15)), a firearm enhancement (Cal. Pen. Code § 12022.5, 1203.06(a)(1)), and one count of assault with a deadly weapon causing great bodily injury. (Cal. Pen. Code § 245(a)(2)).
On June 28, 29, and July 2, 1990, a preliminary hearing was held consolidating this matter with another case charging petitioner with possession of cocaine for sale. (Cal. Health Saf. Code § 11351).
On October 18, 1990, as part of a plea agreement, petitioner pleaded guilty to first degree murder, the firearm enhancement, and assault with a deadly weapon. In exchange for the plea, the prosecutor agreed to dismiss the special circumstances and to forego the death penalty. After petitioner was sentenced to 27 years to life in prison, the prosecutor dismissed the drug case in exchange for an interview with petitioner, during which he confessed to shooting Sonjii and injuring her brother.
Petitioner's sentence consisted of 25 years to life for first degree murder, plus a 2-year enhancement for use of a firearm. Petitioner's 4-year sentence for assault with a deadly weapon ran concurrently with his murder sentence.
On November 20, 1997, petitioner filed a petition for a writ of habeas corpus in Monterey County Superior Court. The superior court denied the petition on the ground that petitioner failed to establish an ineffective assistance of counsel claim. (Cal.Super.Ct., No. HC 3119, Dec. 9, 1997) (Petitioner's Appendix to Petition for Writ of Habeas Corpus ("Pet. App.") B). In 1998, the California Court of Appeal and the California Supreme Court summarily denied his petition for a writ of habeas corpus. (Cal.Ct.App., No. H017855, Jan. 16, 1998) (Pet. App. C); (Cal.Supr.Crt., No. S0690210, Oct. 28, 1998) (Pet. App. D).
Petitioner filed a petition for a federal writ of habeas corpus under 28 U.S.C. § 2254 on November 24, 1998. On August 17, 1999, the court granted respondent's motion to dismiss the petition as untimely under 28 U.S.C. § 2254(d), the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act (AEDPA). Petitioner appealed and the Ninth Circuit remanded the case in light of its subsequent decision in Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (en banc) (per curiam). After a 3-day evidentiary hearing, the court found that petitioner was entitled to equitable tolling under the law of the circuit and that the instant petition for a writ of habeas corpus was timely.
DISCUSSION
I. STANDARD OF REVIEWA federal writ of habeas corpus 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 claims: "(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 Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 363, 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 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." id. at 411. Rather, that application must be "objectively unreasonable." id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the relevant state-court decision.Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). "While circuit law may be persuasive authority for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied." id. (internal citation omitted).
The only challenges left open in federal habeas corpus after a guilty plea are the voluntary and intelligent character of the plea and the nature of the advice of counsel to plead. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Tollett y. Henderson, 411 U.S. 258, 267 (1973). A defendant who pleads guilty upon the advice of counsel may attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases. Id.;United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988);Hudson v. Moran, 760 F.2d 1027, 1030 (9th Cir. 1985).
II. CLAIMS
Petitioner seeks federal habeas relief by raising two claims: (1) petitioner's plea was not voluntary because petitioner's trial counsel and the trial court judge coerced him into making the plea, and (2) petitioner's trial counsel provided ineffective assistance of counsel by failing to advise him of an available affirmative defense, withholding reports, and failing to move to suppress certain evidence.
A. Voluntary and Intelligent Plea
A guilty plea that is not made voluntarily and knowingly violates due process. See Boykin v. Alabama, 395 U.S. 238, 243, n. 5 (1969). Agents of the state may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. See Brady v. United States, 397 U.S. 742, 750 (1970). Nor is coercion by a defendant's own attorney or other third party acceptable. See laea v. Sunn, 800 F.2d 861, 866-67 (9th Cir. 1986).
The long-standing test for determining the validity of a guilty plea is "`whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Parke v. Raley, 506 U.S. 20, 29 (1992) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). This requires a review of the circumstances surrounding the plea. See Brady, 397 U.S. at 749. Of particular importance is whether the defendant entered the guilty plea with sufficient awareness of the relevant circumstances and likely consequences, See id. at 748, and whether he understood the law in relation to the facts, See McCarthy v. United States, 394 U.S. 459, 466 (1969).
Representations of the defendant at a plea hearing, as well as any findings made by the judge accepting the plea, constitute a "formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). "Solemn declarations in open court carry a strong presumption of verity." id. Petitioner's guilty plea must stand unless he can demonstrate it was induced by threats, misrepresentation, or by other improper promises.Brady, 397 U.S. at 755. "Under this standard, a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty." id.
1. Trial Counsel Coercion
Petitioner agreed to plead guilty in exchange for the prosecution's agreement to drop the two special circumstances that could have led to a death penalty sentence. The reporter's transcript from the plea hearing is unavailable; however, respondent submitted the clerk's minute order, which shows that the court accepted petitioner's guilty plea and found that it was made knowingly and voluntarily. See Resp. Reply to Traverse, Exh. 7. In addition, the following colloquy took place at the sentencing hearing after Judge Wunderlich explained the length of the sentence and terms of parole:
According to respondent, the reporter's transcript of the October 18, 1990 plea hearing is unavailable because the court reporter's notes have been destroyed, and no waiver of rights form exists because Monterey County did not use such a form at the time.
Q. [Judge Wunderlich]: And does that revelation now change anything about your decision to enter your plea in this matter? A. [Hardison]: No, Your Honor. Q. Do you wish an opportunity to reconsider your plea, or are you satisfied with the Court accepting the plea as previously entered? A. I'm satisfied, Your Honor.See Pet. App. A, p. 12.
Petitioner does not dispute that the court accepted his plea as voluntary and intelligent. Rather, he claims that he would not have accepted the plea agreement and would have insisted on proceeding to trial but for the use of coercion and threats, which "feared him to accept the plea bargain." According to petitioner, his trial counsel, Mr. James Dozier, "vehemently" told petitioner that he had "absolutely no chance of winning this case," had "absolutely no affirmative defense," and that if he insisted on going to trial, he would "definitely receive the death penalty." Mr. Dozier told him that this was an "open and shut" case because the prosecutor had overwhelming evidence of petitioner's guilt. Before leaving petitioner's holding cell, Mr. Dozier threw a copy of an appeal by an inmate who had recently received the death penalty in front of petitioner and said, "if you don't plead guilty and take the deal, this is what will happen to you." Immediately after this incident, Mr. Dozier took petitioner to the trial judge's chambers and "had the judge [sic] also play a role in persuading petitioner to enter a plea bargain." "[D]efense counsel's threats coupled with his vehement behavior put [petitioner] in a mental state of fear which he had never before experienced in his entire life."
The record supports the conclusion that petitioner's guilty plea was made voluntarily. Petitioner was aware of the nature of the charge against him and of the possible death penalty sentence if he proceeded to trial. He was aware of what he was doing when he admitted shooting Sonjii and wounding Bobby Jr. He has not since attempted to recant his confession. Mr. Dozier's advice to petitioner was based on his judgment of the strength of the prosecution's case and the likelihood of a death penalty outcome if petitioner proceeded to trial. "Mere advice or strong urging by [counsel or] third parties to plead guilty based on the strength of the state's case does not constitute undue coercion."laea, 800 F.2d at 867; cf. United States v. Sutton, 794 F.2d 1415, 1422 (9th Cir. 1986) (rejecting claim of coercion based on threat of prosecution of the defendant's female companion). Mr. Dozier's statements and behavior may be considered passionate and dramatic, but there is no evidence that he exerted mental coercion "overbearing the will of the defendant." Brady, 397 U.S. at 750. Nothing in the record impeaches petitioner's plea or indicates that his admissions in open court were anything but truthful and voluntary.
Petitioner makes no attempt to deny his admission of guilt. On the contrary, he withdrew all previous claims of innocence submitted to the court by stating that he erred in "not omitting the claim of innocence" from his federal habeas petition. See Pet. Traverse, pp 34-35.
Petitioner is not entitled to federal habeas relief on this claim because he failed to present sufficient evidence that Mr. Dozier made any threats, misrepresentations, or other improper promises to rebut the "strong presumption of verity" of his guilty plea. See Blackledge, 431 U.S. at 74.
2. Judicial Coercion
Petitioner alleges that the trial judge, Judge William M. Wunderlich, used coercion and threats to induce his plea during a private, non-recorded meeting in his chambers. According to petitioner, Judge Wunderlich advised him that he was a former district attorney and said,
based on the evidence, it is my opinion that if you proceed to trial you will be convicted of a capital murder. You are in a lot of trouble right now. If you should decide to take this plea, at least you will one day be released from prison, and be able to live a productive life. So you [have] a decision to make.
Petitioner claims that after meeting with the judge he felt he "had no other choice but to accept the plea bargain."
In a sworn declaration, Judge Wunderlich denied telling petitioner that he would be released from prison one day if he agreed to plead guilty because he knew that, at most, petitioner would only be eligible for parole. See Resp. Answer, Exh. 4.
Even assuming facts in the light most favorable to petitioner, Judge Wunderlich's statements do not rise to the level of coercion. Judge Wunderlich advised petitioner of his opinion of what result the fact-finder at trial would reach. At most, Judge Wunderlich's statements were "mere advice or strong urging" that did not rise to the level of coercion. See laea, 800 F.2d at 867. Beyond petitioner's self-serving statement, there is no evidence that the judge's statements induced petitioner to accept the plea. Petitioner admitting to killing Sonjii and was well aware that he could face the death penalty. A guilty plea is not invalid merely because it is motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a more severe penalty. See Brady, 397 U.S. at 751.
Petitioner is not entitled to federal habeas relief on this claim because he failed to present sufficient evidence that Judge Wunderlich made any threats, misrepresentations, or other improper promises to rebut the "strong presumption of verity" of his guilty plea. See Blackledge, 431 U.S. at 74.
B. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (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.
To demonstrate ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense. id. at 687. The two-partStrickland test "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart 474 U.S. 52. 58 (1985). In the context of guilty pleas, the Strickland test requires that petitioner show that the advice he received from counsel was not within the range of competence of attorneys in criminal cases and that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. id. at 58-59; laea, 800 F.2d at 864-65.
Petitioner has the burden of showing that his counsel made errors that were so serious that he was not functioning as the "counsel" guaranteed under the Sixth Amendment. Toomey v. Bunnell 898 F.2d 741, 743 (9th Cir. 1990). Similarly, he must "affirmatively prove prejudice." Strickland, 466 U.S. at 693. "Judicial scrutiny of counsel's performance must be highly deferential." id. at 689. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See id.; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). The relevant inquiry is not whether another lawyer, with the benefit of hindsight, would have acted differently or whether defense counsel could have done differently, but rather, whether the choices made by defense counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).
Petitioner alleges that Mr. Dozier's performance was deficient because he: (1) failed to advise petitioner that an affirmative defense existed, (2) withheld various reports, and (3) failed to move to suppress evidence.
1. Failure to Advise of Affirmative Defense
Petitioner claims that Mr. Dozier was ineffective for failing to advise him that a defense of improper or mistaken identification existed. Petitioner asserts that "the only evidence" against him was Bobby Jr.'s identification of him as the shooter and that Bobby Jr.'s credibility was "destroyed" by his own inconsistent testimony and by the contradictory testimony of his family members. In addition, petitioner argues that Mr. Dozier failed to advise him that the photo identification by Bobby Jr. was "tainted" by Detective Maltby's "unnecessarily suggestive" procedures and was subject to suppression. Had petitioner "known that the only evidence against him was a tainted and impeachable identification witness he would have insisted on going to trial by jury."
Bobby Jr. testified at the preliminary hearing that after Sonjii parked the car, he heard a noise that sounded like firecrackers and saw someone approach the driver's side of the car. When he realized that bullets were being fired, he started screaming and "was too scared to move." After the shooting stopped, Bobby Jr. started to run towards the house. He saw the shooter by a sidewalk light and made eye contact with him for about two seconds. He recognized the shooter as his brothers' friend, Bradley Hardison. When Bobby Jr. reached his house, he told his family that his brothers' friend was the shooter but did not identify petitioner by name. Later, he described the shooter to police officers as "a short negro male about 5'4" tall having a thin build and wearing a black hooded sweatshirt."
According to the preliminary hearing transcript, Robert Johnson, Bobby Jr.'s father, testified that on the night of the murder he saw Sonjii and Bobby Jr. park in the driveway. He walked back to his bedroom and then heard gunshots. Immediately after hearing the gunshots, he walked outside and saw Sonjii sitting in the driver's seat and Bobby Jr. lying on the floor of the car with his head towards the passenger's side door. While he tended to Sonjii on the driver's side, he saw Bobby Jr. limping as he ran into the Johnson home. When Robert Johnson went into the house and asked Bobby Jr. who shot them, Bobby Jr. responded that it was a man with a mask pulled down over his face. At some point that evening, Bobby Jr. told his father that "Anthony and Frederick's friend" was the shooter.
Betty and Paula Johnson, the mother and sister of Sonjii and Bobby Jr., testified at the preliminary hearing that Bobby Jr. said that his brothers' friend shot them. Paula also testified that she was "absolutely certain" that the threatening voice she heard on the telephone the day of the murder was Hardison.
Robert, Betty, and Paula Johnson all testified that they heard Bobby Jr. identify the shooter as "Anthony's friend, " "Anthony and Frederick's friend, " or "my brother's friend." Bobby Jr. testified that the "friend" he was referring to was petitioner.
Deborah Robinson, Sonjii and Bobby Jr.'s first cousin, testified that Bobby Jr. gave her conflicting descriptions of the shooter. On the night of the murder she spoke to Bobby Jr. twice at the hospital where he was being treated for his gunshot wound. During their first conversation, Bobby Jr. told her that the shooter was a "tall light-skinned man with a jerry curl." Shortly thereafter in a second conversation, Bobby Jr. told her that the shooter was a "short man with [a] dark blue hooded shirt on with a ski mask that looks like Brad." He told her, "Brad did it."
Officer William Barrett testified that when he questioned Bobby Jr. immediately after the shooting at the Johnson home, Bobby Jr. described the shooter as "a short negro male, about five foot four, having a thin build, wearing a black hooded sweatshirt and black jeans." He told Officer Barrett that he had not seen the shooter before.
Detective Joseph Maltby testified that he questioned Bobby Jr. at the hospital on the night of the murder. Bobby Jr. told him the shooter was a negro male, 5 foot two or three, slender, weighing 140 to 150 pounds and wearing a black sweatshirt and white pants. When Detective Maltby asked Bobby Jr. whether he knew who the shooter was, Bobby Jr. responded he thought it was Brad Hardison and that he believed Hardison was out to get Sonjii because she talked to the police. He said Sonjii was scared for her life. Detective Maltby then showed Bobby Jr. a photograph of petitioner with three other African-American males. The photograph had been seized from petitioner's apartment during the execution of a search warrant in a drug matter where Sonjii had provided information to the police. Detective Maltby selected that photograph of petitioner to show Bobby Jr. because he suspected that petitioner may have been involved in Sonjii's murder. When Detective Maltby showed Bobby Jr. the photograph, he immediately pointed to petitioner's picture and said, "That's him, I'm positive."
Songia Petite Johnson testified that after she received two phone calls from Monterey County Deputy District Attorney Collier Vale in July 1989, she learned that the decedent had given information to the police. As a result, she told everybody she knew and had word spread on the street that she was not the Sonjii Johnson who was the police informant.
To establish his ineffective assistance of counsel claim, petitioner must show that Mr. Dozier's advice to accept the plea agreement was not within the range of competence of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 58-59.
Although there were inconsistencies in the testimony of Bobby Jr. and his family members, based on the record it cannot be said that Mr. Dozier unreasonably advised petitioner that the prosecutor had sufficient evidence of petitioner's guilt. The evidence presented at the preliminary hearing was substantial. Bobby Jr. identified petitioner as the shooter by physical description and by name; Robert, Betty, and Paula Johnson all testified that Bobby Jr. told them the shooter was his brothers' friend; Officer Barrett and Detective Maltby testified that Bobby Jr. gave them a physical description that matched petitioner; Detective Maltby testified that Bobby Jr. positively identified the shooter by name, and stated his belief that petitioner's motive for killing Sonjii was in connection with her talking to police; Paula Johnson testified that she recognized petitioner's voice as the caller of threatening phone calls on the day of the murder; and Songia Petite Johnson testified that she told everyone on the street that she was not the Sonjii Johnson who was an informant.
In addition to positively identifying petitioner as the murderer and providing a motive for his killing Sonjii, the evidence supports a finding that petitioner was guilty of the two special circumstances that supported the death penalty: lying in wait and killing a material witness.
Although it is possible that a fact-finder could have doubted Bobby Jr.'s credibility and discounted his identification of petitioner, the relevant inquiry is not what defense counsel could have done, but rather, whether the choices he made were reasonable. Babbitt, 151 F.3d at 1173. In light of the weight of the evidence against petitioner and the reasonable probability that he could have received a death penalty sentence, it cannot be said that counsel's advice fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland, 466 U.S. at 688. Petitioner has not "overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (citation omitted).
Under Strickland, to demonstrate prejudice from counsel's failure to advise him of a potential affirmative defense, petitioner must show that the affirmative defense likely would have succeeded at trial.See Hill, 474 U.S. at 59. He has not done so. Petitioner's mere hope that he may have been acquitted is not enough to affirmatively prove prejudice. Based on the evidence in the record, petitioner cannot "affirmatively prove prejudice." Strickland, 466 U.S. at 693.
Furthermore, he failed to demonstrate that there is a reasonable probability that, but for counsel's alleged error, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59. The record does not support petitioner's claim that he was totally unaware of the identification defense at the time he made his plea. The hearing transcript indicates that petitioner would have known by the conclusion of his preliminary hearing that Mr. Dozier's strategy was to attack Bobby Jr.'s identification testimony. Petitioner was present when Mr. Dozier argued before the court that this case was "basically a one eye-witness case, " and that "there's a lot of evidence that should leave the court with a great deal of doubt concerning the accuracy of the identification." Mr. Dozier briefly reviewed the family's testimony and pointed out that "there are too many inconsistencies in Bobby Johnson's identification." He even suggested that Bobby Jr. had a motive to misidentify petitioner because of his drug-related contacts with Bobby Jr.'s brothers: "And I think therein lies the genesis perhaps of the misidentification and the family trying so hard, even if it is unconsciously, to See that Mr. Hardison gets convicted of this crime."
Finally, petitioner's claim that Mr. Dozier should have advised him that the photo identification was subject to a motion to suppress fails because he cannot show that he suffered any prejudice as a result. He asserts that Mr. Dozier should have told him that Detective Maltby's procedure of showing Bobby Jr. a photo of petitioner with three dissimilar individuals was unduly suggestive and subject to suppression. Other than petitioner's own statement, there is no evidence in the record that indicates petitioner would not have entered a guilty plea had he known the photo identification might have been suppressed. Even assuming petitioner knew that the motion could be made, there is substantial evidence in the record that identifies petitioner as the shooter without the photo identification evidence.
The state courts' denial of petitioner's ineffectiveness of counsel claim was a reasonable application of the Strickland/Hill standard. The record shows that the state courts' decision was not "contrary to, or involved an unreasonable application of, clearly established Federal law, " or was based on an "unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). Petitioner is not entitled to a writ of habeas corpus based on this claim.
2. Withheld Reports
Petitioner claims that Mr. Dozier withheld police reports, an investigative report of a potential witness, and the results of a telephone voice line-up. According to petitioner, he repeatedly requested to See the police and investigative reports so that he could assist in his defense, but Mr. Dozier never provided them nor shared the true contents with him.
a. Police Reports
Petitioner asserts that Mr. Dozier withheld the police reports by Officer William Barrett and Detective Joseph Maltby, which "egregiously hindered" him in assisting in his defense. He claims that had he been allowed to review the reports, he would not have pleaded guilty and would have insisted on going to trial.
Petitioner contends that Officer Barrett's report would show that Bobby Jr. could not provide an identification of the shooter and that when Officer Barrett checked the crime scene for physical evidence he did not find any.
Officer Barrett's report dated August 6, 1989, states in part:
Bobby Jr. JOHNSON described the suspect as a short negro male about 5-4 tall having a thin build wearing a black-hooded sweatshirt and a black pair of jeans. He said that they drove into the driveway and the suspect came up from behind the car to the driver's side window and started shooting. He said that the suspect then began running east bound on San Pablo towards the park. . . .
I began checking the area for physical evidence, but could not find any. This case has been referred to investigations, who did arrive on scene.See Pet. App. H, at p. 2.
Petitioner asserts that Detective Maltby's report would show that Bobby Jr.'s identification of petitioner was questionable because when the detective specifically asked Bobby Jr. to identify the shooter, he responded, "he thought it was Bradley Phillip Hardison." (petitioner's emphasis). And it was only after Detective Maltby "took the initiative to elicit petitioner's identity" from Bobby Jr., that he responded with a name rather than just a physical description.
Detective Maltby's report dated August 7, 1989, states in part:
Bobby described the suspect as 5'3" to 5'4" in height, with a slim build, weighing approximately 140 to 150 pounds. Bobby said the suspect was wearing a black sweatshirt with a loose hood up on his head and a pair of white pants. . . .
I asked Bobby if he thought he could identify the person that shot him and his sister. Bobby said he thought it was Bradley Phillip HARBISON. He said he saw his face when he turned to him when he was starting to run up the Hill. Bobby told me he knew his sister Sonjii Yvette JOHNSON had talked to the police and that HARDISON would be out to get her. I then told JOHNSON I was going to show him a photograph containing pictures of four black males of similar age and appearance. I told him that he should not guess or conclude that the photographs contained the picture of the person who may have committed the crime. I told him he was not obligated in any way to identify anyone in the photograph. I told him to take his time, look at the photograph and let me know if he recognized the person that shot him. When I showed Bobby the photograph, he immediately pointed to Bradley Phillip HARDISON's picture and said, That's him, I'm positive."See Pet. App. I., at p. 2.
Petitioner's ineffective assistance of counsel claim based on Mr. Dozier's failure to provide him the police reports is without merit. First, petitioner cannot show that Mr. Dozier's decision not to show petitioner the reports was objectively unreasonable.Strickland, 466 U.S. at 688. Mr. Dozier advised petitioner to plead guilty because, he told petitioner, the prosecution had a strong case against him. Petitioner argues that, contrary to what Mr. Dozier told him, the police reports indicate that Bobby Jr. could not provide an adequate identification of the shooter because he merely stated he "thought it was Bradley Phillip Hardison" without immediately identifying petitioner by name. Petitioner's distinction is not persuasive. Both reports by Officer Barrett and Detective Maltby include a physical description given by Bobby Jr. that matches petitioner's physical traits. Detective Maltby's report indicates that Bobby Jr. identified petitioner by name and emphatically picked him out of a group photograph. Mr. Dozier's advice to petitioner regarding the strength of the prosecution's case was supported by the information contained in the reports. The reports corroborated Bobby Jr.'s eyewitness testimony and provided evidence of petitioner's motive. Petitioner has not shown that Mr. Dozier's decision to share the police reports' conclusions, but not the actual reports, was outside the range of a competent criminal defense attorney. Hill, 474 U.S. at 58.
Second, petitioner failed to demonstrate that there is a reasonable probability that, but for counsel's alleged error, he would not have pleaded guilty and would have insisted on going to trial. Hill 474 U.S. at 59. Even if Mr. Dozier had given him the reports, his advice to petitioner to accept the plea agreement would have been the same. The weight of the evidence against petitioner and the risk of a death penalty sentence was substantial: Bobby Jr. provided eyewitness testimony that he recognized petitioner as the shooter; three of his family members testified that immediately after the shooting, Bobby Jr. identified the shooter as his brothers' friend; Bobby Jr. gave two law enforcement officers a physical description that matched the physical characteristics of petitioner; when questioned by a detective, Bobby Jr. identified petitioner by name and picked him out of a photograph; Paula Johnson recognized petitioner's voice as the caller of threatening phone calls received the night of the murder; and Bobby Jr.'s and Songia Petite Johnson's testimony supported the prosecution's theory of motive and its death penalty case.
Petitioner cannot show how being given the police reports would have made a difference in his decision to plead guilty. He cannot meritoriously claim that when he made his decision to plead guilty he was unaware of the information contained in the reports. Both Officer Barrett and Detective Maltby testified at the preliminary hearing as to the contents of their reports. There is nothing in the reports that creates a reasonable probability that petitioner would not have pleaded guilty and insisted on going to trial if he had received the reports rather than heard their contents as oral testimony. Hill, 474 U.S. at 59.
The state courts' denial of petitioner's ineffectiveness of counsel claim was a reasonable application of the Strickland/Hill standard. The record shows that the state courts' decision was not "contrary to, or involved an unreasonable application of, clearly established Federal law, " or was based on an "unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). Petitioner is not entitled to a writ of habeas corpus based on this claim.
b. Investigative Report: Marie Lawson's Statement
Petitioner claims that Mr. Dozier withheld an investigative report of a potential eyewitness. He alleges that it was only after he had entered his plea and was imprisoned that he became aware that an investigator for the defense had interviewed Sonjii Johnson's neighbor, Marie Lawson.
On October 5, 1990, Christy Conroy, an investigator for the defense, interviewed Ms. Lawson regarding her recollection of the shooting. Ms. Lawson lives across the street from the Johnson residence where the shooting occurred. On the night of the shooting she was at home talking to a friend on the telephone when she heard arguing from across the street. She went to the door and saw a man standing on the driver's side of a car parked in the Johnson's driveway arguing with a woman in the car. She described the man as "kind of tall" with short, curly hair wearing a white tee-shirt and baggy grey pants. He had a gun that looked like a rifle. She heard statements such as, "why are you telling the cops things about me, " and "you were snitching on me." She saw him reach into the car. The woman screamed and tried to get away from him. A male from inside the car said, "why don't you leave her alone." Ms. Lawson ran and told her father about the argument. Then she heard gunshots. She called the police and then went out on her porch and saw the shooter walking down the street without any shoes. Suddenly, he sprinted back up the street and went into the Johnson's house with his gun. She never saw him come out. See Pet. App. G.
Petitioner claims that if he had known about Marie Lawson's statement, he would have insisted on going to trial because Ms. Lawson's statement would have undermined the prosecution's case. According to petitioner, Ms. Lawson's version contradicted Bobby Jr.'s version on "crucial points." The alleged argument that Ms. Lawson overheard on the night of the murder shows that "[i]t is very probable that Bobby Jr. knew the true identity of the shooter but was afraid to reveal that information, and instead identified petitioner as the shooter."
In petitioner's post-plea interview in which he admitted shooting Sonjii, he stated that he did not speak, nor did he hear any conversation by anyone else prior to the shooting, and he did not know where the witness from across the street had come up with her statement. He said that he would have been stupid to make that much noise.
The two-part Hill test requires petitioner to show that his counsel's performance was deficient and that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill 474 U.S. at 58-59. Petitioner has failed to meet his burden.
First, Mr. Dozier's decision not to notify petitioner of Ms. Lawson's interview cannot be considered objectively unreasonable when viewed in the context of his overall advice to petitioner that he accept the offered plea bargain. Strickland, 466 U.S. at 688. Notably, this is not a case where counsel failed to interview a potentially important witness. An investigator retained by the defense interviewed Ms. Lawson prior to petitioner entering a guilty plea. Viewing all of the evidence before him, Mr. Dozier could not have been certain that Ms. Lawson's testimony would aid petitioner's defense; it was too risky: Ms. Lawson's recollection of the night of the murder was uncorroborated by any other evidence and was contradicted by Bobby Jr.'s eyewitness testimony, which was consistent with his statements to police officers at the time of the murder. And, perhaps most importantly, Ms. Lawson's testimony would have provided persuasive evidence for the prosecution's death penalty case because it supports the special circumstance allegation of murder of a witness. In light of the evidence against petitioner and the risk of the death penalty, Mr. Dozier's advice that petitioner accept the offered plea bargain despite Ms. Lawson's testimony was not objectively unreasonable. Strickland, 466 U.S. at 688. Petitioner has not "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." id. at 689 (internal quotations omitted).
Furthermore, petitioner has not demonstrated that there is a reasonable probability that, but for Mr. Dozier's alleged error of not disclosing the interview, he would have insisted on going to trial. Hill, 474 U.S. at 59. Even if Mr. Dozier had discussed Ms. Lawson's interview with petitioner, the weight of the evidence against petitioner indicates that Mr. Dozier's advice to accept the plea agreement would have been the same. The evidence showed that petitioner was positively identified as the shooter by Bobby Jr., whose eyewitness testimony was corroborated by the police reports and testimony of three family members. The record also indicates that petitioner had a motive for killing Sonjii, which would have supported a death penalty sentence.
Petitioner's contention that Ms. Lawson's testimony would have undermined the prosecution's case is mere speculation. The interview transcript shows that Ms. Lawson's testimony would have both helped and hurt his defense. Her testimony may have created doubt regarding Bobby Jr.'s version of the events, but it also would have bolstered the prosecution's case for the death penalty. And, it is not at all certain that Ms. Lawson's version of the events would have been believed. Her version is uncorroborated and contradicted by other evidence in the record. Petitioner's mere belief that Ms. Lawson's testimony would have helped his defense, coupled with his own statement that he would not have entered a guilty plea if he had known of Ms. Lawson's interview, are not sufficient to "affirmatively prove prejudice." See Strickland, 466 U.S. at 693. It simply cannot be said that it is reasonably probable that petitioner would have ignored counsel's advice and insisted on proceeding to trial at the risk of receiving the death penalty merely because Ms. Lawson's testimony may have helped his defense. See Hill, 474 U.S. at 59.
The state courts' denial of petitioner's ineffectiveness of counsel claim was a reasonable application of the Strickland/Hill standard. The record shows that the state courts' decision was not "contrary to, or involved an unreasonable application of, clearly established Federal law, " or was based on an "unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). Petitioner is not entitled to a writ of habeas corpus based on this claim.
c. Voice Line-Up Report
Petitioner claims that Mr. Dozier's performance was deficient for failing to provide him the reports from the telephone voice line-up and for failing to advise him that the voice line-up could be suppressed. He asserts that if he had received the voice line-up reports or knew that they could be suppressed, he would not have pleaded guilty and would have insisted on going to trial.
The telephone voice line-up was conducted on September 26, 1990, at the request of defense counsel for the purpose of determining whether petitioner was the person who placed threatening phone calls to the Johnson's residence on the day of the shooting. The line-up consisted of five callers: petitioner plus four sheriffs, who were given a prepared script to read separately to two listeners — Betty and Paula Johnson. Prior to hearing the callers, both Betty and Paula Johnson were admonished that the person who made the threatening phone calls may or may not be among the voices they would hear. They were instructed to notify the investigator conducting the line-up if they could or could not identify any voice. If they could identify a voice, they were told to identify him or her by number. The report revealed that after Mrs. Betty Johnson listened to the line-up twice, she stated that caller #3 sounded the most like the caller she had heard on August 6, 1989, the day her daughter was murdered. Petitioner was caller #3. Paula Johnson listened to the line-up once and stated that caller #2 sounded the most like the caller she talked to on August 6, 1989. Petitioner was caller #2. The report concluded that "[b]oth Paula and Betty Johnson identified the defendant's voice as the voice which most closely sounded like the callers voice on August 6, 1989." See Pet. App. J.
Petitioner claims that Mr. Dozier never showed him the voice line-up documents and instead, incorrectly told him that he had been positively identified as the caller of the threatening phone calls. In addition, he alleges that Mr. Dozier failed to advise him that the sheriffs' participation in the line-up was fundamentally unfair and subject to suppression because the sheriffs spoke without a ghetto slang accent and, were of a different ethnicity and more educated than petitioner.
Petitioner's contention that it was unfair that he was not told the text of script for the telephone line-up by his counsel or anyone else is disingenuous. Petitioner was a participant in the line-up and obviously was given a script.
Petitioner's argument fails because he cannot show that Mr. Dozier's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 58-59.
First, Mr. Dozier's decision not to show petitioner the report was not objectively unreasonable. Strickland, 466 U.S. at 688. Mr. Dozier informed petitioner that Betty and Paula Johnson positively identified his voice as the caller on the day of the murder. Petitioner argues that, contrary to what Mr. Dozier told him, the voice line-up did not result in a positive identification because the report indicates that Betty and Paula Johnson said that petitioner "merely sounded the most like" the caller. Petitioner's distinction is without merit. Mr. Dozier gave petitioner a fair and accurate summary of the voice line-up report. The reports demonstrate that both Betty and Paula Johnson received an admonishment that they did not have to identify any voice as the caller. Yet both of them, separately and independently, identified petitioner's voice as the caller. Petitioner has not shown that Mr. Dozier's decision to share the results, but not the report itself, was outside the range of a competent criminal defense attorney. Hill, 474 U.S. at 58.
Second, petitioner cannot show that he suffered any prejudice as a result of Mr. Dozier's alleged errors. Strickland, 466 U.S. at 693. Even if Mr. Dozier had given him the report and advised him about the prospects of filing a motion to suppress, his advice to petitioner to accept the plea agreement would have been the same. The weight of the evidence against petitioner and the risk of a death penalty sentence were substantial.
Petitioner cannot show how being given a copy of the voice line-up report would have made a difference in his decision to plead guilty. As previously stated, the voice line-up report was consistent with Mr. Dozier's statement to petitioner that he was positively identified as the caller. In any event, the report may not have been necessary because Paula Johnson testified at the preliminary hearing that she was "absolutely certain" that the voice she heard on the telephone the night of the murder was petitioner. Thus, even assuming that Mr. Dozier had advised petitioner about the prospects of filing a motion to suppress and ultimately succeed in suppressing the voice line-up, petitioner would have been identified as the caller by Paula Johnson nonetheless. In sum, there is no reasonable probability that, but for counsel's alleged errors, petitioner would not have pleaded guilty and would have insisted on going to trial. Hill 474 U.S. at 59.
The state courts' denial of petitioner's ineffectiveness of counsel claim was a reasonable application of the Strickland/Hill standard. The record shows that the state courts' decision was not "contrary to, or involved an unreasonable application of, clearly established Federal law, " or was based on an "unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). Petitioner is not entitled to a writ of habeas corpus based on this claim.
3. Failure to Suppress Evidence
Petitioner claims that Mr. Dozier was ineffective for failing to move to suppress Bobby's photo identification and the results of the telephone voice line-up.
Petitioner's challenge of the photo identification and the voice line-up are not cognizable in a federal habeas corpus petition because petitioner waived any pre-plea ineffective assistance of counsel claims when he entered his guilty plea. "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Petitioner's claim of ineffective assistance of counsel on this ground is barred under the rationale of Tollett, See Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) (refusing to consider petitioner's ineffective assistance of counsel claim for failure to suppress his confession on the ground that it constitutes a pre-plea constitutional violation that is waived by petitioner's plea).
III. JUDICIAL NOTICE
Petitioner requests that the court take judicial notice of a newspaper article published in the Monterey Herald on November 16, 1990, to support his contention that had he known about Marie Lawson's testimony, he would have chosen to go to trial rather than accept a plea agreement. Petitioner points to the following two sentences in the article to support his claim that had Lawson testified at trial, he would have been acquitted:
But the new witness' version of events casts some doubt over the testimony of the key prosecution's witness, Sonjii's brother, Bobby Johnson, Jr., 21.
The neighbor, by clouding the credibility of Dozier's key witness, might have helped Dozier and Newhouse win an outright acquittal of Hardison.See Pet. App. L.
Although a court may take judicial notice of a newspaper article,See Ritter v. Hughes Aircraft Co., 58 F.3d 454, 458-59 (9th Cir. 1995), petitioner must meet the burden of demonstrating that the facts of the article are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned" as required under Rule 201(b) of the Federal Rules of Evidence.
Petitioner cannot meet this burden because he is, in effect, requesting that the court take judicial notice of the reporter's opinion that Marie Lawson's testimony would support petitioner's acquittal. The statement that Lawson's testimony "might have helped" petitioner is merely speculation and cannot be a "fact" commonly known throughout the court's territory, or one that is capable of sufficient accurate and ready determination by other credible sources. Indeed, the article on its face states that Marie Lawson's testimony "cut two ways" and could support either the prosecution or the defense.
On the one hand, the neighbor provided the first direct confirmation of the prosecution theory that Hardison killed Ms. Johnson to prevent her from testifying against him and an associate. That would have supported Dozier's argument for the death penalty at Hardison's trial.
But on the other hand, the neighbor, by clouding the credibility of Dozier's key witness, might have helped Dozier and Newhouse win an outright acquittal for Hardison.
Petitioner's request for judicial notice of the Monterey Herald newspaper article is denied.
IV. EVIDENTIARY HEARING
Petitioner requests that an evidentiary hearing be held on the ground that the state courts denied him the opportunity to develop the facts by failing to hold an evidentiary hearing. Petitioner asserts that he has alleged facts that if proven, would entitle him to habeas corpus relief. Petitioner raises three alleged factual disputes: (1) the truth of the Monterey Herald newspaper article, (2) Mr. Dozier's declaration submitted by respondent as to his belief that the case against petitioner was overwhelming, and (3) Judge Wunderlich's personal bias to resolve this murder case as reported in the Monterey Herald newspaper article.
Under the AEDPA, a district court may not hold an evidentiary hearing on a claim for which the petitioner failed to develop a factual basis in state court unless the petitioner shows that: (1) the claim relies either on (a) a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review, or (b) a factual predicate that could not have been previously discovered through the exercise of due diligence, and (2) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2).
However, the fact that an evidentiary hearing is permitted because a prisoner was able to meet the requirements of § 2254(e)(2) does not mean that a hearing is required. Downs v. Hoyt 232 F.3d 1031, 1041 (9th Cir. 2000). The district court retains discretion whether to hold such an evidentiary hearing. See id. (noting that expansion of the record may obviate the need for a hearing). Thus, even if the evidentiary hearing is permitted under § 2254(e)(2), it is not required if the issues can be resolved by reference to the state court record. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998).
Such is the case here. There is no need for an evidentiary hearing because all three of the alleged factual disputes raised by petitioner can be resolved by referring to the record. And, even if all three factual disputes were resolved in petitioner's favor, there is insufficient evidence in the record to overcome the presumption that petitioner's guilty plea was val id. As discussed above, the record supports the finding that petitioner's guilty plea was made voluntarily and that Mr. Dozier's advice to petitioner to accept the offered plea bargain was objectively reasonable based on the entirety of the evidence. Petitioner has not alleged any facts that, if proven, would entitle him to relief.
Petitioner's request for an evidentiary hearing is denied.
CONCLUSION
After a careful review of the record and pertinent law, the court is satisfied that the petition for writ of habeas corpus must be DENIED.
The clerk shall enter judgment in favor of respondent and close the file.
SO ORDERED.