Free Response to Habeas Petition - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 PEGGY S. RUFFRA Supervising Deputy Attorney General 5 MICHELE J. SWANSON, State Bar No. 191193 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5703 7 Fax: (415) 703-1234 Email: [email protected] 8 9 Attorneys for Respondent 10 11 12 13 14 TREMAYNE J. COLLIER, 15 Petitioner, 16 v. 17 ANTHONY HEDGPETH, Warden, 18 Respondent. 19 20 21 Respondent provides this answer to the order to show cause why the petition for writ ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS C 07-5964 SI (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

22 of habeas corpus should not be granted: 23 24 25 I. CUSTODY Petitioner Tremayne J. Collier is lawfully in the custody of Anthony Hedgpeth, Warden

26 of Kern Valley State Prison, as a result of a judgment of conviction in San Francisco County 27 Superior Court, case number 182125-02. A jury found petitioner guilty of first degree murder and 28 two counts of second degree robbery, with firearm enhancements on all counts. The trial court
Answer to Petition for Writ of Habeas Corpus Collier v. Hedgpeth, Warden C 07-5964 SI (PR)

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1 sentenced petitioner to 13 years plus 51 years to life in state prison. 2 3 4 II. GENERAL AND SPECIFIC DENIALS Respondent denies that the state court rulings were based on an unreasonable

5 determination of fact or were contrary to or involved an unreasonable application of clearly 6 established United States Supreme Court precedent. Respondent specifically denies that: (1) 7 insufficient evidence supports petitioner's convictions and enhancements; (2) the trial court denied 8 petitioner due process by denying his motion to discharge Juror No. 11; (3) the prosecutor 9 committed misconduct by questioning a witness about petitioner's pre-trial incarceration, and by 10 commenting on petitioner's failure to testify during his closing argument; (4) petitioner's sentence 11 is cruel and unusual; (5) trial counsel was ineffective; (6) appellate counsel was ineffective; (7) the 12 admission of evidence of a subsequent robbery committed by petitioner violated due process; (8) 13 the prosecutor's late disclosure of a police report violated petitioner's constitutional rights; (9) the 14 trial court's denial of petitioner's motion to exclude witness testimony violated due process; (10) 15 the prosecutor denied petitioner a fair trial by asking a law enforcement witness to comment on the 16 credibility of a prosecution witness; (11) the trial court's instruction on unjoined perpetrators denied 17 petitioner due process; and (12) the admission of a photograph of the victim while alive violated due 18 process. 19 20 21 III. PROCEDURAL DEFENSES Petitioner exhausted his claims in state court. The petition is timely within the meaning

22 of 28 U.S.C. § 2244. 23 24 25 IV. LODGED DOCUMENTS Respondent has lodged concurrently with this answer the following exhibits: (1) State

26 Court Clerk's Transcript (9 volumes); (2) State Court Reporter's Transcript (18 volumes, organized 27 by volume number); (3) State Court Reporter's Transcript (18 volumes, miscellaneous by date); (4) 28 Opinion of California Court of Appeal; (5) Petition for Review filed in California Supreme Court;
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1 (6) Order of California Supreme Court denying review. 2 3 4 5 6 7 8 9 10 11 12 13
20117845.wpd

Dated: June 25, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General PEGGY S. RUFFRA Supervising Deputy Attorney General

/s/ Michele J. Swanson MICHELE J. SWANSON Deputy Attorney General Attorneys for Respondent

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

SF2008400505

Answer to Petition for Writ of Habeas Corpus

Collier v. Hedgpeth, Warden C 07-5964 SI (PR)

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 PEGGY S. RUFFRA Supervising Deputy Attorney General 5 MICHELE J. SWANSON, State Bar No. 191193 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5703 7 Fax: (415) 703-1234 Email: [email protected] 8 9 Attorneys for Respondent 10 11 12 13 TREMAYNE J. COLLIER, 14 Petitioner, 15 v. 16 ANTHONY HEDGPETH, Warden, 17 Respondent. 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS C 07-5964 SI (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 PEGGY S. RUFFRA Supervising Deputy Attorney General 5 MICHELE J. SWANSON, State Bar No. 191193 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5703 7 Fax: (415) 703-1234 Email: [email protected] 8 Attorneys for Respondent 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 13 14 15 16 17 18 19 20 STATEMENT OF THE CASE In 2004, a jury found petitioner guilty of first degree murder and two counts of second v. ANTHONY HEDGPETH, Warden, Respondent. TREMAYNE J. COLLIER, Petitioner, C 07-5964 SI (PR) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

21 degree robbery, with firearm enhancements on all counts.1/ 4 CT 961; 5 CT 1070-1074; RT 22 23 24 1. Co-defendant Daniel Mooring was granted a separate trial, and found guilty of robbery special-circumstance first degree murder, two counts of second degree robbery, assault with a deadly 25 weapon, and possession of a firearm by a felon. He was sentenced to life without the possibility of 26 parole on the murder count. Mooring currently has a federal habeas petition pending in this Court. See Mooring v. Walker, No. C 07-5013 SI (pr). This Court has designated Mooring's and Collier's 27 federal habeas actions as related cases within the meaning of Civil L.R. 3-12. See Mar. 25, 2008 Order. 28
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1 [7/29/04] 2843-2846.2/ The trial court sentenced petitioner to 13 years plus 51 years to life in state 2 prison. 5 CT 1223-1224, 1235-1238; RT [12/10/04] 15-21. 3 In 2006, the California Court of Appeal affirmed the judgment of conviction. Exh. 4.

4 That same year, the California Supreme Court denied a petition for review. Exhs. 5-6. 5 In 2007, petitioner filed a series of habeas petitions in the state superior court, court of

6 appeal, and supreme court, all of which were denied. See Exhs. C-E to the Petition. 7 Petitioner filed the instant federal habeas petition on November 27, 2007. On February

8 7, 2008, this Court ordered respondent to show cause why the petition should not be granted. 9 10 11 12 follows: 13 14 15 16 17 .... 18 .... 19 A. PROSECUTION EVIDENCE IN THE TRIAL OF COLLIER 20 1. Robbery of LaBonte 21 22 23 24 25 2. "CT" refers to the State Court Clerk's Transcript, which is contained in Exhibits 1A to 1I filed in support of the Answer. "RT" refers to the State Court Reporter's Transcript, which is 27 contained in Exhibits 2A to 2R (volumes 1-18), and Exhibits 3A to 3R (miscellaneous by date), filed in support of the Answer. 28 26
Memo. of Pts. and Auths. in Support of Answer to Petition for Writ of Habeas Corpus Collier v. Hedgpeth C 07-5964 SI (PR)

STATEMENT OF FACTS The California Court of Appeal summarized the facts underlying petitioner's crimes as

I. FACTS AND PROCEDURAL HISTORY This matter arises from the robbery and assault of Ray LaBonte and the robbery and murder of Shayne Worcester in May 1999, involving Collier, Daniel Mooring, Santese Edwards, and Willie Kennedy.[FN1] FN1. Our opinion in the matter of People v. Mooring (A106400), involving the same incident, was issued on October 3, 2005.

Victim LaBonte left his home in San Francisco around 10:00 p.m. on May 25, 1999, carrying $8 in cash. As he walked towards Alhambra Street, he saw two black males standing in a doorway. One of them ran behind him. The other approached from the front, raised a weapon, and told him to "get down." LaBonte dropped to his knees. The man in front (purportedly Mooring) aimed a long, black, single-barrel gun at him with two hands and demanded his money and wallet. LaBonte threw the $8 from his pocket onto

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the ground and said he did not have a wallet. The person behind LaBonte (purportedly Edwards) checked LaBonte's back pocket for a wallet and hit him in the back of the head. Mooring then struck LaBonte in his face, probably with the butt of a gun, and LaBonte lost consciousness. LaBonte recalled that the gunman who approached from the front was about six feet tall and husky. At Mooring's trial he identified this man as Mooring. The other man was lankier and about the same height or a little taller, but he did not see his face. Both assailants had hoods on their heads, wore dark clothing, and were in their mid-20's. Edwards admitted at trial that he and Mooring were the ones who robbed LaBonte. That evening, Edwards recalled, Collier, Mooring, and Kennedy (also known as "JR") had picked Edwards up in Collier's Mustang. Edwards was wearing a black nylon pullover jacket. Kennedy, wearing a black leather jacket, had a . 22-caliber rifle in a bag. Collier, who was driving, wore a black jacket as well. Collier drove them to Market Street, where Kennedy said he saw someone who had previously robbed him. Kennedy, taking his gun, got out of the car with Collier. Edwards lost sight of them for a short time, heard a man screaming, and then saw Kennedy and Collier returning to the car. Kennedy still had the gun. After driving to the Marina District, Edwards spotted a man (LaBonte), walking alone, whom they could rob. Collier stopped the car, Edwards and Mooring got out, and Kennedy gave Mooring the .22-caliber rifle. Edwards instructed Collier to meet them at the same location in about three minutes. Collier drove off with Kennedy. Mooring and Edwards approached LaBonte. Mooring, holding the gun, stood in front of LaBonte, while Edwards circled behind him. After Edwards went through LaBonte's pockets and got his money, Mooring hit LaBonte with the gun. LaBonte let out a gurgling sound and fell to the sidewalk. Mooring and Edwards returned to the drop-off point, where Collier and Kennedy picked them up. Edwards asked Mooring why he hit the victim so hard. By the time of trial, Edwards could not recall Mooring's response. Kennedy testified to the same effect. On May 25, he recounted, Collier picked him up in Collier's red Mustang. Kennedy, who had his loaded, sawed-off, .22- caliber rifle in a gym bag, was wearing a black leather jacket. Collier wore a black coat. They picked up Edwards, who was also wearing a black coat. Mooring joined them as well. At some point, Kennedy and Collier got out of the car and tried to rob a man with Kennedy's gun. They then continued on toward the Marina District, discussing "jacking" (robbing) someone. When they got to the Marina District, Kennedy saw a man walking by himself. Someone in the car said, "let's get out and get him." The car stopped, and Edwards and Mooring got out with the sawed-off .22-caliber rifle. Collier and Kennedy drove around the block and, two or three minutes later, picked up Edwards and Mooring, who still had the gun. Kennedy heard Edwards ask Mooring why he hit the victim so hard. Without denying that he hit the man, Mooring said that "a bullet fell out" of the gun. San Francisco Police Officer David Garcia testified that he responded to the scene of the LaBonte robbery and found blood on the sidewalk and a .22-caliber slug. Julia Eyerman testified to her observations on the night of May 25 as well. About 10:00 p.m., she heard loud voices and saw from her window two black men, in dark
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clothing, getting out of a reddish Mustang or similar vehicle in the middle of the street. One of the men was heavier set, and the other was thinner. The car sped off and the men walked out of her view. About 20 minutes later, Eyerman heard a commotion and saw the two men run from around the corner and get into the Mustang. The car drove off. Eyerman later identified photographs of Collier's car as the Mustang she observed that night. 2. Homicide of Worcester

5 a. Testimony of Worcester's friend, Farley 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 c. Testimony of accomplice Kennedy 24 25 26 27 28
Memo. of Pts. and Auths. in Support of Answer to Petition for Writ of Habeas Corpus Collier v. Hedgpeth C 07-5964 SI (PR)

Christopher Farley and Worcester, who was visiting San Francisco, had dinner with a group of friends, went to a bar in the Marina District, and left shortly before midnight on May 25, 1999. They walked towards Farley's apartment on Russian Hill. At the corner of Hyde and Vallejo Streets, Farley noticed two black men dressed in dark clothing, standing against a building as he and Worcester walked by. After Worcester and Farley crossed Hyde Street, the men began yelling and running at them. Farley nudged Worcester and started to run. When he looked back, Farley saw Worcester face down on the ground, with the two assailants standing over him. The men demanded Worcester's money or wallet, and Worcester told them it was in his pocket and to take it. At this point Farley noticed that the assailants were wearing dark, hooded jackets, but he could not see their faces. One or both of the assailants went through Worcester's pockets, and it appeared that one of them had Worcester's wallet in his hand. Farley next saw one of the assailants raise his arm and lean towards Worcester; then he heard two or three popping sounds. The robbers ran off. Farley went to Worcester and saw he was covered in blood. b. Other percipient witness testimony Christopher Jung lived at the corner of Hyde and Vallejo. Around 12:15 a.m. on May 26, 1999, he heard two "bangs" that sounded like gunshots. He looked outside and saw a dark-red car with a tan or white convertible top, double-parked on Hyde Street. A gangly man over six feet tall with short cropped hair, wearing a black long-sleeved sweatshirt and black pants was standing alone in the middle of the street near the back of the car. After a minute or two, the man got in the passenger side of the car and the car slowly moved away. Jung called 911. Kristen Grant heard loud voices outside her home near the intersection of Vallejo and Hyde Streets around 12:15 a.m. on May 26. One man loudly said, "you better run, motherfucker." She heard people running, and then she heard a man say something to the effect of "give me your wallet," and another man replying something like "okay, whatever you want, fine." Three gunshots rang out in close succession, and more than one person ran away. When she looked out her window 15 or 30 seconds later, she observed a man (Worcester) lying face down on the sidewalk. Another man (apparently Farley) stood over him and was asking for someone to call 911. She did.

Kennedy identified Collier and Mooring as the principal perpetrators of the Worcester murder. According to Kennedy's account, as Collier drove them around San Francisco after the LaBonte robbery, Kennedy, Mooring, Edwards, and Collier discussed robbing somebody else. In particular, Mooring urged them: "let's go riding and see if we can find some more people."

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Observing two men walking down the street, someone in the car said, "there goes two guys right there." Collier and Mooring, carrying Kennedy's gun, got out of the car, and Kennedy and Edwards drove around the block. Kennedy soon heard 2-3 gun shots. About a minute later, Collier and Mooring, who was still carrying the gun, ran back to the car and jumped in. The four drove off. Mooring said he did not know why he shot the victim, while Collier said that he (Collier) had the victim "pinned down." As they left the scene, Collier threw papers from a wallet out the window.[FN3] FN3. Worcester's driver's license and other items from his wallet were found near the intersection of Hyde and Lombard streets on the morning of May 26, 1999, and turned in to the police. The foursome drove to a gas station, where Collier got out and said he was going to pay for the gas with a credit card. They next dropped off Edwards at his house and drove to a Denny's restaurant in Emeryville. There, they ate with one of Kennedy's high school acquaintances (Elena Bishop) and her friends. Collier paid for the food with a credit card.[FN4] Collier later dropped Kennedy and Mooring off at Kennedy's house. Kennedy did not know what happened to his gun. FN4. Bishop corroborated Kennedy's account at trial, and specifically identified Collier, who she told police had been wearing a black leather coat. In addition, there was evidence that charges were made on Worcester's Visa card at 12:28 a.m. on May 26, 1999, at a gas station in San Francisco, and at 2:05 a.m. at a Denny's Restaurant in Emeryville. d. Testimony of accomplice Edwards Edwards, like Kennedy, testified that Collier and Mooring were the ones who attacked Worcester and Farley. Edwards explained that, after the LaBonte robbery, they saw two men walking down the street. Edwards said it was Collier's and Kennedy's turn to commit a robbery. When Kennedy declined to participate, Collier got out of the car with Mooring, who had the gun. Edwards and Kennedy stayed in the car. Not long after, Edwards heard two or three fire-cracker sounds. About half a minute later, Collier and Mooring ran back to the car and got in. Edwards drove off. He asked Mooring what he just did, but Mooring did not respond. At trial, Edwards did not recall Collier saying anything at the time.[FN5] As they drove from the scene, Kennedy threw papers from the wallet out the car window. FN5. Defense investigator Pamela Olsen testified that she took a statement from Edwards in April 2002, during which Edwards told her that Collier said to Mooring, "You didn't have to do it." After stopping for gas, Edwards drove Collier, Mooring, and Kennedy to his house and told them to get rid of the gun. Edwards got out of the car, and the other three drove away. e. Coroner's testimony The coroner determined that Worcester died from multiple gunshots wounds. Two bullets had entered the back of his head and penetrated his brain; both of these wounds were fatal. A third bullet entered his left shoulder. Worcester's wounds were consistent with being shot with a Marlin .22-caliber rifle from three to four feet away while lying face down on the ground.

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3. Police Investigation San Francisco homicide Inspectors Edward Wynkoop and Curtis Cashen were assigned to investigate the Worcester case on May 26, 1999. They went to the scene, interviewed several witnesses, and collected evidence. They also learned that the car involved in the shooting matched the description of the car involved in the LaBonte robbery that same night, and that .22-caliber bullets were found at both crime scenes. In early September 1999, Wynkoop received a tip from a California Highway Patrol officer that a person identified as "Bobbie" had information concerning the involvement of "JR," who was later identified as Kennedy. At a meeting at a San Francisco restaurant on September 8, 1999, "Bobbie" gave Wynkoop a photograph of Mooring and indicated that Edwards and Kennedy were also involved, as was a person named "Tremayne," who was driving a red convertible Mustang. Wynkoop determined from DMV records that Tremayne Collier owned a 1991 Ford. Later in September 1999, Wynkoop met with the victim of an armed robbery at an ATM in San Rafael in June 1999 (ATM Robbery), about three weeks after the Worcester shooting. The victim, Frank Caiazzo, identified Collier as a suspect in the ATM Robbery by selecting his photograph from a photographic line-up. On November 22, 1999, police officers executed a search warrant at Collier's home in Richmond. In his bedroom officers found a black down jacket. The police crime lab determined that distinctive gunshot residue particles on both sleeves of the jacket were consistent with a man wearing the jacket while standing over a prone victim, next to a person who shot the victim three times. Wynkoop spoke with Collier on November 22, 1999, at the Hall of Justice. Their conversation was tape-recorded and played for the jury. In the interview, Collier denied involvement in the Worcester shooting. He claimed that he recognized photographs of Kennedy but not Mooring. He identified pictures of his car, but denied he was the person depicted in photographs taken by the ATM security system at the time of the Caiazzo robbery. He told officers, falsely, that he purchased his red Mustang on May 27, 1999.[FN6] Collier refused to speak to Wynkoop further. FN6. Rodolfo Gomez, manager of Almaden Auto Sales, testified and produced documents establishing that he sold a 1991 Ford Mustang to Collier on May 11, 1999. On that same day, Wynkoop interviewed Mooring, who was in custody. Mooring denied involvement. Kennedy refused to speak to Wynkoop and requested a lawyer. Later that afternoon, Kennedy's attorney faxed the officers a letter asserting Kennedy's right to remain silent and his continued assertion of his right to counsel. On November 24, 1999, however, Cashen was contacted by Sergeant (now Lieutenant) Michael Ridgway of the Marin County Sheriff's Department. Ridgway advised Cashen that he had learned through an informant that Kennedy was interested in talking about the Worcester incident. Wynkoop and Cashen went to San Rafael and met briefly with Ridgway and then with Kennedy. Kennedy provided them details of the LaBonte robbery and Worcester murder, which the investigators attempted to corroborate. On December 2, 1999, officers interviewed Kennedy's mother, Renee Williams. She told them that "Milo" (Mooring) was at her house the night of the murder and, while they were watching a TV news report about the killing, she asked Mooring if he was involved. Mooring told her that he shot the man.
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Police confronted Mooring the next day. Mooring explained that he was in the wrong place at the wrong time and that, if he told them what happened, he would be incriminating himself. On December 3, 1999, police interviewed Edwards, who told them he knew nothing about the incident and that he had either been at work that night or with his girlfriend. Officers were unable to confirm his alibis. Three days later, police executed a search warrant on Edwards' residence. They seized two photographs, one of Edwards with Mooring, and one of Edwards with Kennedy. They also seized a black hooded jacket, which matched the description of the jacket worn by the perpetrators. Officers interviewed Lashonta Bateast, who lived with Mooring's cousin, in May 2000. Bateast told them that a day or two after the shooting, Mooring was at her house with another man. Mooring asked Bateast if she had seen the news about a tourist killing. He said that he shot the victim because he needed money, and that his accomplice went through the victim's pockets. The man with Mooring smirked, and she got the impression that he was Mooring's accomplice. Bateast identified Edwards as the man with Mooring. Wynkoop had another conversation with Collier on October 18, 2000. A tape of this interview was also played for the jury. This time, Collier claimed that on May 25, 1999, he loaned his Mustang to Kennedy, who was with Mooring and was going to pick up Edwards. Collier denied that he went along with them to San Francisco, contending that he was instead with his girlfriend and met up with Kennedy only later at Denny's. 4. Kennedy's and Edwards' Deals with the Prosecution Pursuant to a plea bargain, Kennedy pleaded guilty on April 16, 2001, to a felony charge of being an accessory after the fact. He faced a maximum term of three years, but was given a suspended sentence and placed on three years probation with one day in jail, in exchange for giving truthful testimony at the trials of Mooring and Collier. He testified before a grand jury on April 17, 2001. Later that month, the grand jury indicted Mooring, Collier, and Edwards. Edwards was arrested on the indictment in April 2001. After Edwards provided a statement to a defense investigator, in which he answered questions posed by the prosecutor, he was offered a negotiated plea bargain. On June 25, 2002, Edwards pled guilty to felony grand theft, with the understanding that he would serve no more than four years. 5. Evidence of Collier's ATM Robbery Caiazzo testified to being robbed at an ATM around 4:20 a.m. on June 17, 1999 (approximately three weeks after the Worcester shooting). According to Caiazzo, a man in a Sausalito bar had introduced him to three men, who said they would give him a ride to an ATM so he could withdraw money to purchase drugs from them. He got in their car, and they proceeded to an ATM. After withdrawing some money, Caiazzo saw one of the men--a balding African-American in his early 30's who had been driving the car--approaching with a short-barrel shotgun.[FN7] The man hit Caiazzo with the butt of the gun, Caiazzo fell, and the man put his foot on Caiazzo's back so that his face was on the ground. Caiazzo gave the man the money, and the robbers drove away. FN7. The officer responding to the ATM Robbery testified that Caiazzo reported it was a pump action pellet gun. Although Caiazzo was unable at Collier's trial to identify Collier as the ATM robber,

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he did identify a photograph of Collier that he had selected from a photographic line-up on September 29, 1999 as the one who "looks most like the driver and man with gun." In court, he pointed out Collier as a "bigger, older version" of the man in the photograph he had selected. Denise LeBard testified that she was present at an "official proceeding"[FN8] on February 23, 2000, at which Collier admitted that he was the man depicted in photographs taken by the ATM security camera on the night of the robbery. He maintained, however, that he was holding an ax handle. FN8. The "official proceeding" referenced in the trial was Collier's parole revocation hearing. A retired firearms examiner testified that he had viewed the ATM photographs, and the object in the hands of the assailant was consistent with a rifle-type weapon and not inconsistent with a .22 caliber Marlin rifle. [The object was not consistent with an axe handle.] B. DEFENSE CASE The defense case attacked the credibility of Edwards and Kennedy. Among other things, the defense produced evidence that Kennedy committed a home-invasion robbery in January 2003. In addition, the defense introduced evidence that Edwards was arrested in January 2004 for theft of property from a Sears store, and when stopped in May 2004 he was found to be in possession of a loaded handgun. The defense also called Lieutenant Ridgway as a witness. Ridgway recounted that he was told by an informant, Prudence Wesson, that she had spoken to Kennedy about the shooting and that he had admitted his involvement. Kennedy told Wesson that he never left the car and had nothing to do with the robbery. Ridgway contacted Inspector Cashen, who asked Ridgway to try to get a statement from Kennedy. Ridgway called Wesson back and arranged to speak to Kennedy at Wesson's residence. Ridgway surreptitiously recorded his conversation with Kennedy. Kennedy told Ridgway that he did not see the actual shooting of Worcester, but observed Collier remove the victim's wallet from his pants, knock the victim to the ground, kick him, and put his foot on the victim's throat. Kennedy also told Ridgway that Collier asked Mooring why he shot Worcester, that they used Worcester's credit card at Denny's, and that he threw the gun off the Bay Bridge. Ridgway wrote a report on November 26, 1999, about Kennedy's statement. Among other things, the report indicated that Kennedy displayed signs of deception when he said that he had thrown the murder weapon off the Bay Bridge.

22 Exh. 4 at 2-12. 23 24 STANDARD OF REVIEW This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996

25 (AEDPA), which imposes a "highly deferential" standard for evaluating state court rulings and 26 "demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 27 U.S. 19, 24 (2002) (per curiam). Under the AEDPA, the federal court has no authority to grant 28
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1 habeas relief unless the state court's ruling was "contrary to, or involved an unreasonable application 2 of," clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). A decision constitutes 3 an unreasonable application of Supreme Court law only if the state court's application of law to the 4 facts is not merely erroneous, but "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 5 (2003). Thus, "[o]nly if the evidence is `too powerful to conclude anything but' the contrary" should 6 the court grant relief. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc) (quoting 7 Miller-El v. Dretke, 545 U.S. 231, 265 (2005)). The petitioner bears the burden of showing that the 8 state court's decision was unreasonable. Visciotti, 537 U.S. at 25. 9 10 11 12 13 14 Petitioner argues that his murder and robbery convictions and gun enhancements violate ARGUMENT I. SUFFICIENT EVIDENCE SUPPORTS PETITIONER'S MURDER AND ROBBERY CONVICTIONS AND GUN ENHANCEMENTS

15 due process because there is insufficient evidence to support the jury's verdicts. Petition at 6a-6q. 16 Petitioner, however, merely argues his own interpretation of the evidence and the credibility of the 17 witnesses in making his claim. The jury was free to make reasonable inferences from the evidence 18 and weigh the credibility of the witnesses, and the trial record was sufficient to support its verdict 19 in this case. 20 In deciding a claim of sufficiency of the evidence, the court must determine whether,

21 "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact 22 could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. 23 Virginia, 443 U.S. 307, 319 (1979). It is the province of the jury to weigh the evidence and 24 determine the credibility of the witnesses, id., and a defendant's mere disagreement with the jury's 25 view of the evidence is not enough to support a claim of insufficient evidence. Under the AEDPA, 26 the question is whether the state court's application of the Jackson standard was objectively 27 unreasonable. Juan H. v. Allen, 408 F.3d 1262, 1274-1275 (9th Cir. 2005). 28
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1

The evidence at trial established that petitioner and his friends drove around San Francisco

2 looking for victims to rob. 2 RT 598, 637; 3 RT 654, 658, 669-670; 4 RT 848-851; 5 RT 951; 6 RT 3 1209; 9 RT 1539-1546; 11 RT 1724-1725, 1739-1749, 1832-1834; 12 RT 1981, 1998, 2008-2010, 4 2016. The four young men discussed their plans openly in the car. When they spotted LaBonte 5 walking alone, petitioner stopped the car and let Mooring and Edwards out so they could rob him. 6 2 RT 522, 600-603; 3 RT 652, 655, 710; 11 RT 1748-1766, 1785-1794; 12 RT 2016-2017, 20207 2021; 13 RT 2037-2041, 2051-2054, 2093-2094. Mooring pointed a gun at LaBonte and demanded 8 his money while Edwards went through his pockets. 2 RT 603-608, 634-635; 11 RT 1765-1772. 9 Mooring then used his gun to hit LaBonte in the face. In the meantime, petitioner circled around 10 the block and picked them up when they were done. 2 RT 608-609; 3 RT 657-659, 662; 8 RT 1341, 11 1404; 9 RT 1561; 11 RT 1768-1773; 13 RT 2041-2042; but see 12 RT 1901. When the foursome 12 later spotted Worcester and Farley walking together, petitioner was the one to get out of the car with 13 Mooring to rob them. 2 RT 522; 3 RT 710; 11 RT 1785-1794; 13 RT 2051-2054. Petitioner and 14 Mooring ran after the two men, and petitioner pinned Worcester facedown on the ground. 3 RT 71115 726; 5 RT 927-930. They demanded his money, and, after taking his wallet, Mooring shot him in 16 the head and back, killing him. Petitioner and Mooring then ran back to the car where their friends 17 were waiting and drove away. 2 RT 521, 539-540, 564-567, 585; 3 RT 725-738; 4 RT 812, 822-832, 18 838; 4 RT 864; 5 RT 931-933; 8 RT 1395-1396; 11 RT 1795-1800, 1822; 12 RT 1941; 13 RT 205619 2059, 2095; 15 RT 2290-2291, 2300, 2309. Petitioner went through Worcester's wallet in the car, 20 and used one of his credit cards to purchase gas and breakfast for his friends. 3 RT 762-763; 5 RT 21 915-920, 960-981, 996-1010; 6 RT 1085-1089; 11 RT 1801-1806; 13 RT 2060-2069; 15 RT 2291. 22 The evidence therefore shows that petitioner was an accomplice to the robbery of LaBonte and a 23 principal in the robbery-murder of Worcester, both of which involved the use of a gun. 24 Far from demonstrating a lack of evidence supporting his convictions and enhancements,

25 petitioner merely argues his own view of the evidence. However, the jury was well aware of 26 petitioner's defense--which consisted of an attack on the credibility of Kennedy and Edwards and 27 a denial that he knew his friends were planning to rob people--and necessarily rejected such defense 28
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1 in finding him guilty. In sum, because the jury could draw a reasonable inference from the 2 prosecution's evidence to support the convictions and enhancements, the state court did not 3 unreasonably reject petitioner's insufficient evidence claim. 4 5 6 7 8 Petitioner contends that the trial court denied him the right to a fair trial by denying his II. THE TRIAL COURT DID NOT DENY PETITIONER DUE PROCESS BY DENYING HIS MOTION TO DISCHARGE JUROR NO. 11

9 motion to discharge Juror No. 11 due to her exposure to improper third-party communications. 10 Petition at 6r-6u. However, because the alleged third-party misconduct did not result in actual bias, 11 petitioner was not prejudiced by the trial court's denial of his motion. 12 13 A. Trial Court Proceedings During trial, Juror No. 11 reported an incident of alleged third-party misconduct to the trial

14 court's clerk. 1 RT 487, 491. The trial court excused the other jurors for the day and held an in 15 chambers hearing with Juror No. 11, defense counsel, and the prosecutor. 1 RT 487. Juror No. 11 16 informed the court of an incident that happened in the hallway of the courthouse as she was walking 17 to the jury assembly room for lunch. 1 RT 488. As she passed by two men and a woman, she heard 18 the woman say, "`And there's juror number 11, as we speak.'" 1 RT 488-490. She had never seen 19 the woman or two men before the encounter in the hallway, nor had she seen them since. 1 RT 49020 492. Juror No. 11 explained that she thought the incident was something she ought to report. 1 RT 21 490-491. When asked how she felt about what she had heard, Juror No. 11 explained that she felt 22 "a little threatened" by the comment and the tone of the woman's voice. 1 RT 491. 23 Both sides were given the opportunity to question Juror No. 11. 1 RT 492. When defense

24 counsel asked if Juror No. 11 had told the other jurors about the incident, she replied, "No." 1 RT 25 492. Defense counsel then asked, "Do you feel now there's any reason why you couldn't be fair to 26 both sides?" 1 RT 493. Juror No. 11 indicated that she did not know whether the people in the 27 hallway were connected to the defense or the prosecution, or if they were trying to make her 28
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1 nervous. 1 RT 493. When the trial court asked if she could set the incident aside, she replied, "Oh, 2 absolutely." 1 RT 493. When asked if the incident would affect her ability to be fair, she stated, 3 "No, no, not at all." 1 RT 493. She stated that she would simply be more cautious, but assured the 4 court that she would be "all right." 1 RT 490, 492-494. The court asked her to report back 5 immediately if she saw the woman or men again. 1 RT 494. 6 The next day, defense counsel moved to discharge Juror No. 11 for cause. 2 RT 502-503.

7 Defense counsel stated that he was concerned by Juror No. 11's remark that she felt threatened by 8 the woman's comment in the hallway. 2 RT 503. The prosecution argued that Juror No. 11 9 appeared to be put at ease by the trial court's inquiry, and that the record did not "reflect any 10 disqualification or disability to carry out her duties impartially." 2 RT 504. The trial court denied 11 the motion, noting that the defense had not made a "sufficient showing of an impairment of [Juror 12 No. 11's] ability to be fair and impartial here, given what has happened." 2 RT 504-505. However, 13 the court stated that it would question Juror No. 11 again later in the week to make sure that there 14 were no lasting effects from the incident, and noted that the defense could renew its motion at the 15 time if it had any further concerns. 2 RT 505. 16 At the end of the week, the trial court asked Juror No. 11 if she had any more experiences

17 with the woman and men that had caused her concern. 4 RT 878. She replied, "Not with regard to 18 that incident." 4 RT 878. When the court asked what she meant, she explained that two of the 19 managers at her work had made inappropriate comments to her about the trial. They had both tried 20 to get details out of her about the case itself, but she told them she could not discuss it. 4 RT 88121 882. One of them told her to "`burn him,'" and the other asked her if they should call her "`Hang 22 `Em High.'" 4 RT 879-880. She said that while she thought that the comments had been made in 23 jest and not with the intention to pressure her, she did not appreciate them and did not want them 24 to distract her in her duties as a juror. 4 RT 879-880, 884. She stated, however, that the incidents 25 would not affect her ability to be fair. 4 RT 884. She indicated that she would talk to them both 26 about it, and tell them that the comments had to stop. 4 RT 886. The court asked Juror No. 11 to 27 come in early the following Monday so that they could discuss the matter further. 4 RT 888. 28
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1 Defense counsel did not renew his motion to discharge Juror No. 11. 2 The following Monday, Juror No. 11 told the court that she felt her concerns had been

3 resolved. 5 RT 905. She related that she had spoken to both managers, and believed that they would 4 no longer be making any inappropriate comments to her. 5 RT 905-906. She did not feel that her 5 job was in jeopardy, and felt that she could give her full attention to the trial. 5 RT 906. She had 6 no concern that the incident would impact her ability to be fair. 5 RT 906. Both parties declined 7 the court's invitation to question Juror No. 11, 5 RT 906, and defense counsel did not renew his 8 motion to discharge her. 9 10 11 In Remmer v. United States, 347 U.S. 227 (1954), the Supreme Court addressed the issue B. The State Court's Rejection Of Petitioner's Claim Was Not Objectively Unreasonable

12 of unauthorized contact with jurors: 13 14 15 16 17 18 Id. at 229-230. In other words, "due process does not require a new trial every time a juror has been 19 placed in a potentially compromising situation." Smith v. Phillips, 455 U.S. 209, 217 (1982). 20 Rather, the Supreme Court "has long held that the remedy for allegations of juror partiality is a 21 hearing in which the defendant has the opportunity to prove actual bias." Id. at 215; see also United 22 States v. Angulo, 4 F.3d 843, 847 (9th Cir.1993) ("[T]he remedy for allegations of jury bias is a 23 hearing, in which the trial court determines the circumstances of what transpired, the impact on the 24 jurors, and whether or not it was prejudicial.") 25 In this case, any claim of prejudice arising from the third-party communications with Juror In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.

26 No. 11 is rebutted by the record. Here, the trial court explored the alleged misconduct with Juror 27 No. 11 and its impact on her, and gave counsel the opportunity to question her about the incidents. 28
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1 As for the incident in the hallway of the courthouse, while Juror No. 11 did say she felt threatened 2 by the comment and would be more cautious in the future, she also stated that she did not know if 3 the people in the hallway were connected to the defense or the prosecution or if they were trying to 4 make her nervous. She stated without equivocation that she could still be fair. As for the comments 5 made by the managers at work, Juror No. 11 indicated that the problem had been resolved, and that 6 it would not affect her ability to be fair or to pay attention to the trial. Defense counsel himself 7 appeared satisfied that Juror No. 11's ability to be fair had not been compromised, as he did not 8 renew his motion to discharge her after the court conducted its follow-up inquiries with her. The 9 trial court's determination that Juror No. 11 was not biased is a factual finding that is presumed 10 correct and has not been rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1); Patton 11 v. Yount, 467 U.S. 1025, 1038 (1984); Estrada v. Scribner, 512 F.3d 1227, 1240 (9th Cir. 2008); 12 Bonin v. Calderon, 59 F.3d 815, 840-841 (9th Cir. 1995). Given Juror No. 11's forthrightness and 13 assurances that the incidents would not affect her ability to be fair, petitioner was not prejudiced by 14 the trial court's refusal to discharge her. 15 Petitioner contends that he is entitled to an evidentiary hearing "to determine if Juror 11

16 was discharged or not," and cites Angulo in support of his contention. Petition at 6t-6u. Angulo, 17 however, is a federal direct appeal case that established only that an evidentiary hearing is necessary 18 to determine if a third-party communication resulted in actual bias, which is what took place in this 19 case. We note that the trial court extensively questioned Juror No. 11 about the details of the two 20 separate incidents, as well as the effect the two incidents had on her ability to continue to serve as 21 a juror. The court also gave both attorneys the option to question Juror No. 11 about the incidents. 22 Under these circumstances, petitioner had every opportunity to explore any effect the alleged third23 party misconduct had on Juror No. 11. In any event, as it is clear from the record that Juror No. 11 24 was not discharged, there is no need to conduct an evidentiary hearing on this point. See 28 U.S.C. 25 § 2254(e)(2) (limiting basis for obtaining federal evidentiary hearing); see also Tracey v. Palmateer, 26 341 F.3d 1037, 1044 (9th Cir. 2003) (Supreme Court authority does not require evidentiary hearing 27 any time juror misconduct comes to light). 28
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1 2 3 4

III. THE PROSECUTOR DID NOT COMMIT MISCONDUCT DURING HIS DIRECT EXAMINATION OF EDWARDS OR DURING HIS CLOSING ARGUMENT Petitioner contends that the prosecutor committed misconduct by eliciting testimony from

5 Edwards that petitioner was incarcerated before his trial, as well as commenting on petitioner's 6 failure to testify during his closing argument. However, as neither of the alleged instances of 7 misconduct denied petitioner a fair trial, his claims fail. 8 9 A. Trial Court Proceedings Both the prosecutor and defense counsel questioned Edwards about the time he spent in

10 custody before reaching a plea agreement with the prosecution. 11 RT 1818-1829, 1871-1877. 11 During the prosecutor's direct examination of Edwards, he questioned him about whether he, 12 petitioner, and Mooring had any conversations about the case while they were in custody. 11 RT 13 1819-1825. In addition, both the prosecutor and defense counsel questioned Edwards about an 14 incriminating letter petitioner wrote and handed to Edwards while they were in adjoining cells. 11 15 RT 1826-1829, 1837-1848; 12 RT 1919-1922. Defense counsel did not object to the prosecutor's 16 questions referencing petitioner's in-custody status. See 11 RT 1818-1829. 17 During his closing argument, the prosecutor pointed out that the prosecution's gunshot

18 residue expert was "never challenged," RT [7/27/04] 2740, that there was "no evidence" challenging 19 the fact that Kennedy, Edwards, Mooring, and petitioner were friends, RT [7/27/04] 2747, and that 20 petitioner himself said in October 2000 that there was "no case against" Kennedy, RT [7/28/04] 21 2810-2811. 22 23 24 The standard of review for a prosecutorial misconduct claim in the federal habeas context B. The State Court Did Not Unreasonably Reject Petitioner's Claims Of Prosecutorial Misconduct

25 is the narrow one of due process and not the broad exercise of supervisory power. See Darden v. 26 Wainwright, 477 U.S. 168, 181 (1986); Cooper v. McGrath, 314 F.Supp.2d 967, 992 (N.D. Cal. 27 2004). A petitioner's due process rights are not violated unless a prosecutor's comments render a 28
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1 trial fundamentally unfair. See id.; Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of 2 due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the 3 culpability of the prosecutor"). The standard is the same for claims of improper questioning of a 4 witness by the prosecutor. See Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998). In considering 5 whether the questioning deprived the petitioner of a fair trial, the witness's testimony should be 6 viewed as a whole to determine the impact of the alleged improper questioning. See id. at 934-935. 7 Here, the prosecutor's questioning of Edwards did not deny petitioner a fair trial. The jury

8 was well aware that Edwards was in custody before negotiating his plea bargain, and both the 9 prosecutor and defense counsel questioned him about his time in jail and its impact on his 10 motivation to seek a plea agreement. Moreover, the prosecutor introduced a crucial piece of 11 evidence through Edwards's testimony--an incriminating letter petitioner handed Edwards while 12 they were in adjoining cells. It was therefore impossible to avoid mention of petitioner's pre-trial 13 incarceration in order to explore this line of questioning. See United States v. Washington, 462 F.3d 14 1124, 1137 (9th Cir. 2006) (finding a state purpose to mention of the defendant's custodial status). 15 Such references, however, were minimal, and took up only a small portion of the prosecutor's entire 16 direct examination of Edwards. Moreover, defense counsel's failure to object to such references 17 suggests that he did not discern any prejudice arising from the prosecutor's questions. Id. Finally, 18 in light of the damning nature of Edwards's testimony as a whole, his few references to petitioner's 19 in-custody status did not so infect the trial with unfairness as to make the resulting convictions a 20 denial of due process.3/ 21 In addition, there is no support for petitioner's contention that the prosecutor committed

22 misconduct during his closing argument. Although it is considered misconduct to comment on a 23 defendant's failure to testify, Griffin v. California, 380 U.S. 609, 615 (1965), that is not what 24 occurred in this case. Rather, the prosecutor was merely commenting on the lack of evidence 25 26 3. Petitioner cites Duran v. Thurman, 106 F.3d 407 (9th Cir. 1997), in support of his 27 argument. However, the opinion is unpublished and may not be cited to this Court pursuant to Ninth Circuit Rule 36-3(c). 28
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1 challenging the gunshot residue expert's conclusions and the friendship between the four men. See 2 United States v. McChristian, 47 F.3d 1499, 1507 (9th Cir. 1995) (distinguishing between comments 3 on the state of the evidence from comments on a defendant's failure to testify); United States v. 4 Mayans, 17 F.3d 1174, 1185-1186 (9th Cir. 1994); Shumate v. Newland, 75 F.Supp.2d 1076, 1091 5 (N.D. Cal. 1999). Moreover, the prosecutor's reference to a statement petitioner made in October 6 2000 was a fair comment on the evidence rather than a comment on petitioner's failure to testify. 7 Accordingly, the prosecutor's closing argument did not deny petitioner a fair trial. 8 9 10 11 IV. PETITIONER'S SENTENCE IS NOT CRUEL AND UNUSUAL Petitioner contends that his sentence violates the Eighth Amendment's prohibition against

12 cruel and unusual punishment. Petition at 6aa-6bb. Petitioner's sentence of 13 years plus 51 years 13 to life, however, is not disproportionate to his crimes of murder and robbery. 14 In Lockyer v. Andrade, 538 U.S. 63, the Supreme Court held that the only relevant clearly

15 established Supreme Court law on the Eighth Amendment is that a "gross disproportionality 16 principle is applicable to sentences for terms of years." Id. at 72. Legislatures have "broad 17 discretion to fashion a sentence that fits within the scope of the proportionality principle." Id. at 76. 18 While the precise contours of this principle are "unclear," it is applicable "only in the `exceedingly 19 rare' and `extreme' case." Id. at 72-73, quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) 20 (Kennedy, J., concurring). The Supreme Court concluded that the state court's affirmance of the 21 petitioner's sentence of 50 years to life, which was based on two current convictions for felony petty 22 theft of videotapes with a prior, plus three prior convictions for residential burglary, was not an 23 unreasonable application of the gross disproportionality principle. Andrade, 538 U.S. at 73-74. 24 Petitioner contends that he was intoxicated and did not know what was going on at the

25 time of the robberies and murder in this case. Petition at 6aa. However, the jury necessarily found 26 that he possessed the requisite intent to commit his crimes when it found him guilty of murder and 27 robbery in this case. Accordingly, his sentence is not disproportionate to his crimes of murder and 28
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1 robbery. See Plascencia v. Alameida, 467 F.3d 1190, 1204 (9th Cir. 2006) (25-years-to-life sentence 2 for murder enhanced by consecutive 25-years-to-life sentence for a weapon enhancement not cruel 3 and unusual punishment); Harris v. Wright, 93 F.3d 581, 583-585 (9th Cir. 1996) (15-year-old 4 defendant's sentence of life without the possibility of parole for murder not cruel and unusual 5 punishment). 6 V. 7 TRIAL COUNSEL WAS NOT INEFFECTIVE 8 9 Petitioner contends that trial counsel was ineffective for failing to investigate the

10 whereabouts of two potential defense witnesses, Leslie Devlin and Tiyon Ford. Petition at 6cc-6ee. 11 Petitioner asserts that if Devlin had been located, she would have testified that Kennedy told her that 12 he, petitioner, Edwards, and Mooring were all under the influence of drugs at the time of the 13 robberies and murder in this case. Petition at 6cc. Petitioner also asserts that Ford would have 14 testified that petitioner intervened when Kennedy tried to assault Ford before the robbery of 15 LaBonte. Petition at 6dd. Petitioner contends that counsel was also ineffective for failing to call 16 an expert to the stand to testify that petitioner would have been unable to form the intent to commit 17 his crimes due to his intoxication. Petition at 6ee-6gg. Petitioner contends that the outcome of his 18 trial would have been different if each of these witnesses had testified. Petition at 6cc-6gg. 19 In order to prevail on a claim of ineffective assistance of counsel, a defendant must

20 establish that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) 21 there is a reasonable probability that, but for counsel's errors, he would have received a more 22 favorable result. Strickland v. Washington, 466 U.S. 668, 687 (1984). On federal habeas, a 23 petitioner must show that the state court applied Strickland to the facts of his case in an objectively 24 unreasonable manner. Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam). "[C]ounsel has a 25 duty to make reasonable investigations or to make a reasonable decision that makes particular 26 investigations unnecessary." Strickland, 466 U.S. at 691. 27 28
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Petitioner has failed to demonstrate that his counsel was ineffective for failing to locate

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1 and call Devlin and Ford as defense witnesses. First, we note that counsel did attempt to locate and 2 call both witnesses, but that Devlin left the court's jurisdiction before she could be subpoenaed, and 3 that Ford ignored a subpoena to appear in court. See CT 828, 1171. Second, in the absence of 4 declarations by these witnesses demonstrating what they would have said at trial, petitioner cannot 5 meet his burden to affirmatively show prejudice from the failure to call the witnesses. Allen v. 6 Woodford, 395 F.3d 979, 1002 n. 2 (9th Cir. 2005) ("the district court correctly disregarded the 7 failure to call [three named witnesses], because Allen failed to make a showing that they would have 8 testified if counsel had pursued them as witnesses"); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 9 2000) (petitioner presented no evidence that alleged alibi witness "actually exists, other than Dows' 10 self-serving affidavit," and could not show that witness would have presented helpful testimony 11 because he failed to present affidavit from witness). Counsel's failure to call these individuals did 12 not therefore fall below an objective standard of reasonableness. 13 Nor was counsel deficient for failing to call an expert on intoxication. There was no

14 substantial evidence in the case that petitioner was intoxicated at the time of the robberies and 15 murder. Accordingly, there was no basis for calling such an expert. 16 Finally, petitioner cannot show any prejudice resulting from counsel's performance. Even

17 if Devlin had testified in the manner suggested by petitioner, petitioner would not have received a 18 more favorable verdict given the overwhelming evidence that he knew exactly what was going on 19 around him on the night of the robberies and murder. Further, calling Ford would have only hurt 20 petitioner's case, as the encounter further demonstrated petitioner's awareness of, and participation 21 in, the criminal activities of his friends on the night in question. Finally, failing to call an expert 22 could not have prejudiced petitioner in light of the overwhelming evidence that petitioner was an 23 active participant in the crimes. In sum, no ineffective assistance of counsel is shown. 24 25 26 27 28
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VI. APPELLATE COUNSEL WAS NOT INEFFECTIVE Petitioner contends that appellate counsel was ineffective for failing to raise the above five

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1 issues. Petition at 6hh. Counsel, however, was not deficient for failing to raise unmeritorious claims 2 on appeal. 3 The Strickland standard applies to claims of ineffective assistance of appellate counsel as

4 well as trial counsel. Evitts v. Lucey, 469 U.S. 387, 396 (1985). "There can hardly be any question 5 about the importance of having the appellate advocate examine the record with a view to selecting 6 the most promising issues for review. This has assumed a greater importance in an era when oral 7 argument is strictly limited in most courts--often to as little as 15 minutes--and when page limits 8 on briefs are widely imposed." Jones v. Barnes, 463 U.S. 745, 752-753 (1983). "Experienced 9 advocates since time beyond memory have emphasized the importance of winnowing out weaker 10 arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." 11 Id. at 751-752; accord, Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) ("the weeding out of 12 weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy"). Thus, 13 "it is still possible to bring a Strickland claim based on [appellate] counsel's failure to raise a 14 particular claim, but it is difficult to demonstrate that counsel was incompetent." Smith v. Robbins, 15 528 U.S. 259, 288 (2000). 16 Petitioner claims that appellate counsel should have raised additional arguments relating

17 to the sufficiency of the evidence, failure to discharge a juror, prosecutorial misconduct, cruel and 18 unusual punishment, and ineffective assistance of trial counsel. However, as shown above, because 19 each of these claims lack merit, petitioner's claim of ineffectiveness on the part of appellate counsel 20 necessarily fails as well. See Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002) (the failure to 21 raise untenable claims on appeal does not constitute ineffectiveness). 22 23 24 25 26 VII. THE ADMISSION OF EVIDENCE OF A SUBSEQUENT ATM ROBBERY COMMITTED BY PETITIONER DID NOT VIOLATE DUE PROCESS Petitioner contends that the trial court violated his right to due process by admitting

27 evidence of the ATM robbery. Petition at 6ii-6oo. He argues that there were no permissible 28
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1 inferences to be drawn from such evidence, and that it constituted improper character evidence. 2 Petition at 6ii-6oo. However, because the evidence was probative of petitioner's knowledge and 3 intent, its admission did not violate due process. 4 5 A. Trial Court Proceedings Before trial, the prosecutor filed a motion in limine seeking to introduce evidence that

6 petitioner committed the ATM robbery three weeks after the robbery and killing of Worcester. 1 7 CT 199-201; 2 CT 277-278. The court found several similarities between the ATM robbery and 8 Worcester robbery-murder, and ruled that the ATM robbery was admissible to show petitioner's 9 knowledge and intent with regard to the charged crimes. The court also ruled that the evidence was 10 relevant to show petitioner's knowledge of firearms and to refute any claim of mistake, accident, or 11 lack of intent. RT [6/2/04] 126-127, 134. 12 Right before jurors heard testimony regarding the ATM robbery, the court instructed them

13 that the evidence was being admitted only to show petitioner's intent as to the charged crimes. The 14 court cautioned jurors that they could not use the evidence "to prove that defendant is a person of 15 bad character or that he has a disposition to commit crimes" or "for any other purpose." 9 RT 1458. 16 Caiazzo testified about the armed robbery at the ATM, and confirmed that he had

17 previously identified petitioner from a photographic lineup as his assailant. 9 RT 1463-1474, 147618 1478. In addition to Caiazzo's testimony, the prosecutor introduced photographs taken by the ATM 19 camera during the robbery, petitioner's admission that one of the photographs was of him and 20 another was of his car, and expert testimony that the object being held by the assailant was 21 consistent with a rifle. 9 RT 1469, 1472-1474, 1476-1478, 1552-1554; 11 RT 1698-1700. 22 At the close of evidence, the court again instructed the jury that evidence of the ATM

23 robbery could only be used to show that petitioner had the knowledge and intent necessary for the 24 charged crimes and for no other purpose. RT [7/27/04] 2671-2672, 2677; 4 CT 977, 992. 25 In closing argument, the prosecutor asserted that the jury could use the evidence of the

26 ATM robbery to "answer the question what [petitioner's] knowledge was and what his intent was." 27 The prosecutor then read the trial court's instruction regarding the limited purpose for which the 28
Memo. of Pts. and Auths. in Support of Answer to Petition for Writ of Habeas Corpus Collier v. Hedgpeth C 07-5964 SI (PR)

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Case 3:07-cv-05964-SI

Document 12-2

Filed 06/25/2008

Page 23 of 49

1 evidence was admitted, and urged the jury to "use that [ATM] robbery three weeks later exactly the 2 way Her Honor's law tells you you can." The prosecutor went on to argue that the "armed robbery 3 three weeks later tells you that when he's dropping off Mooring and Edwards in the Marina and they 4 get LaBonte, that he knows what their purpose is, and he intends for that robbery to go down." RT 5 [7/27/04] 2738-2739. 6 Defense counsel argued that the ATM robbery was so different from the charged incident

7 that it reflected nothing about petitioner's intent. He also emphasized to jurors the court's 8 instruction that they could not use such evidence to infer that petitioner was a bad person. RT 9 [