Robbins v. Smith , 411 F. App'x 37 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 29 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LEE ROBBINS, No. 07-55458
Petitioner - Appellant, D.C. No. CV-94-01157-GHK
v.
MEMORANDUM*
GEORGE SMITH,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted December 7, 2010
Pasadena, California
Before: PREGERSON, CLIFTON, and BEA, Circuit Judges.
Lee Robbins appeals the district court’s denial of his petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I. Right to Counsel
Robbins raises three appointment of counsel claims purportedly implicating
his Sixth Amendment rights. Each lacks merit.
First, Robbins is not entitled to substitute his court-appointed counsel with
new counsel simply because he disagrees with his counsel or is unsatisfied with his
counsel’s performance. A criminal defendant has a constitutional right to
appointed counsel but not to any particular attorney. Jackson v. Ylst, 921 F.2d 882,
888 (9th Cir. 1990). Upon review of the multiple Marsden hearings held by the
trial court, we conclude that the court did not abuse its discretion in denying
Robbins’s request. Nothing in the record indicates that the disagreements between
Robbins and his counsel prevented counsel from rendering effective assistance.
Second, after Robbins’s voluntary and intelligent waiver of counsel pursuant
to Faretta v. California, 422 U.S. 806, 835 (1975), Robbins did not expressly
request reappointment of counsel. Instead, Robbins made requests for advisory
counsel and to retain his pro se status and to act as co-counsel. Only in a single
paragraph in the May 2, 1990 motion did Robbins mention reappointment of
counsel, and this request was clearly qualified by his insistence that he remain co-
counsel. This was not a request to withdraw his waiver and be represented by
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counsel in subsequent proceedings, and thus Robbins’s waiver carried forward.
See United States v. Springer, 51 F.3d 861, 864-65 (9th Cir. 1995).
Third, there is no Sixth Amendment right to advisory counsel. United States
v. Moreland, 622 F.3d 1147, 1155 (9th Cir. 2010).
II. Brady Material
Robbins did not establish a Brady violation because the exculpatory
evidence allegedly withheld from Robbins was not material. See Brady v.
Maryland, 373 U.S. 83 (1963). Evidence is material “if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Silva v. Brown, 416 F.3d 980, 985 (9th
Cir. 2005) (citations omitted). In Robbins’s case, there was no such reasonable
probability.
With respect to the victim’s rap sheet, any information to be gained would
have been cumulative. Merely cumulative evidence does not satisfy the Brady
materiality prong. See Barker v. Fleming, 423 F.3d 1085, 1096-97 (9th Cir. 2005).
With respect to the ballistics report, the record does not establish that such a
report existed. Like the district court, we conclude the government did not violate
Brady by withholding a report that did not exist. We are unpersuaded by
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counsel’s inference that a report did exist. Such an inference is not supported by
the record.
Finally, as to the victim’s death certificate, the coroner’s investigator’s
report, the GSR Data Sheet, and the Case Reported sheet, the documents were not
material. Even though the four documents tended to refute the government’s
theory as to when the shooting occurred, the documents were contradicted by
substantial ear and eye witness testimony, which informed the jury that the
shooting had occurred sometime prior to 8:30 pm. Because the overwhelming
evidence presented at trial was contrary to the information in the four documents,
the government’s failure to disclose the documents was not prejudicial and did not
violate Brady. See United States v. Zuno-Arce, 44 F.3d 1420, 1428 (9th Cir. 1995).
III. Appellate Review and Assistance of Appellate Counsel
Robbins’s appellate counsel did not provide ineffective assistance of counsel
per se by filing a no-merit brief pursuant to California procedure in People v.
Wende, 25 Cal. 3d 436 (1979). Smith v. Robbins, 528 U.S. 259, 276, 279-84
(2000). The proper standard under which to evaluate Robbins’s Wende claims is
that enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Smith, 528
U.S. at 285. Robbins is required to “show that his counsel was objectively
unreasonable in failing to find arguable issues to appeal. . . . If Robbins succeeds in
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such a showing, he then has the burden of demonstrating prejudice.” Id. (citation
omitted).
Appellate counsel did not render ineffective assistance for failing to raise
meritless legal arguments. See Shah v. United States, 878 F.2d 1156, 1162 (9th
Cir. 1989); Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982). First,
Robbins did not request reappointment of counsel, as discussed above. Second, the
trial court properly exercised its discretion in considering and denying Robbins’s
request for advisory counsel. Contrary to Robbins’s belief, People v. Bigelow, 37
Cal. 3d 731, 743-44 (1984), does not lay out a strict rubric of factors that a court
must consider. Under Bigelow, a defendant is entitled “only to a considered
exercise of judicial discretion,” id. at 745, which Robbins received when the trial
court considered his request during the August 9, 1990 hearing. Third, the four
undisclosed documents were not material under Brady.
Moreover, Robbins is not entitled to a presumption of prejudice simply
because counsel failed to provide the entire record on appeal as required by Wende.
This scenario does not fall into those categories requiring a presumption of
prejudice under Strickland. See Smith, 528 U.S. at 285-87. We also decline
Robbins’s invitation to extend Penson v. Ohio, 488 U.S. 75, 86-88 (1988), and do
not find that Robbins was constructively denied counsel such that a presumption of
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prejudice is warranted. Robbins has not demonstrated that counsel’s failure to
provide the entire record on appeal resulted in actual prejudice, as required under
Strickland.
AFFIRMED.
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FILED
Robbins v. Smith, No. 07-55458 DEC 29 2010
MOLLY C. DWYER, CLERK
PREGERSON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I agree with the majority that Robbins’ three appointment of counsel claims
implicating his Sixth Amendment rights lack merit. I disagree, however, with the
majority’s conclusion that the exculpatory evidence allegedly withheld from
Robbins was not material, and I would reverse the district court on this basis.
Therefore, I dissent.
Robbins claims that the prosecution violated his due process rights under
Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose (1) the victim’s rap
sheet, (2) the ballistics report, and (3) documents that suggest that the victim was
killed at 10:00 pm, instead of 6:00 to 6:30 pm as the prosecution argued at trial.
These documents include the victim’s death certificate, the coroner’s investigator’s
report, the GSR Data Sheet, and the Case Reported sheet. Instead of holding an
evidentiary hearing to determine whether these documents were in fact turned over
to Robbins, the district court dodged the issue by concluding that the evidence
contained in these documents was not material. I disagree and would remand to
the district court to determine whether the prosecution turned over these documents
to Robbins.
Evidence is material under Brady “if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result would have been
different.” Silva v. Brown, 416 F.3d 980, 985 (9th Cir. 2005) (citations omitted).
The proper inquiry is whether the evidence the prosecution failed to disclose
undermines the confidence in the verdict. Id. If the prosecution did in fact
withhold these documents as Robbins asserts, I believe the guilty verdict returned
on the murder charge is not worthy of our confidence.
A. The Victim’s Rap Sheet
In his pre-trial discovery motion, Robbins explicitly requested that the
prosecution produce the victim’s rap sheet, which would have revealed that the
victim was arrested a few months before his death for beating his wife. That rap
sheet suggests that the victim was a violent person and that someone else might
have had a motive to kill him. Regardless of whether the trial court would have
admitted the victim’s rap sheet into evidence, its disclosure would have influenced
Robbins’ defense strategy. United States v. Bagley, 473 U.S. 667, 682-83 (1985).
Therefore, the victim’s rap sheet is material for the purposes of Brady because
there is a “reasonable probability that the result” of Robbins’ trial would have been
different had the prosecution disclosed this evidence of Robbins’ violent
propensities. Silva, 416 F.3d at 985.
B. The Ballistics Report
The majority affirms the district court’s finding that “the government did not
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violate Brady by withholding a [ballistics] report that does not exist.” Maj. op. at
3. I disagree. First, it defies common sense that the police did not produce a
ballistics report in their investigation of a murder where the murder weapon was a
gun, and expended bullets were found at the scene of the crime and some were
lodged in the body of the victim. Second, Deputy Van Horn, a firearms examiner
in the Los Angeles County Scientific Services Bureau, Firearm Identification
Section, testified solely at trial about his conclusions that the bullets found at the
crime scene were fired from the same gun owned by Robbins’ brother-in-law and
recovered from Robbins’ brother-in-law’s house. A ballistics report must therefore
have existed, and such a report is certainly material in a case where the only
physical evidence possibly linking Robbins to the murder scene was the validity of
the match between the gun found at Robbins’ brother-in-law’s house and the
bullets found at the murder scene.
While I recognize that there is a factual dispute whether the prosecution did
in fact turn over Deputy Van Horn’s report to Robbins, oddly the district court’s
conclusion here was based on its belief that no ballistics report existed. I would
remand to the district court to determine (1) whether Deputy Van Horn’s report is a
ballistics report, and (2) whether the prosecution in fact provided it to Robbins.
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C. The Coroner’s Documents
The victim’s death certificate, the coroner’s investigator’s report, a GSR
Data Sheet, and a Case Reported sheet all suggest that the shooting occurred at
10:00 pm and not at 6:30 pm, as the prosecution alleged at trial. The prosecution
based its case at least in part on being able to place Robbins near the scene of the
crime at around 6:30 pm when it believed the shooting took place.
The majority affirms the district court’s conclusion that these documents
were not material “[b]ecause the overwhelming evidence presented at trial was
contrary to the information in the four documents.” Maj. op. at 4. The majority,
however, has applied the wrong standard.
As we stated in Silva, “[t]he question is not whether the defendant more
likely than not would have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.” 416 F.3d at 985. The prosecution’s case here was
based on circumstantial evidence placing Robbins at the scene of the crime around
6:00 and 6:30 pm. The only physical evidence possibly linking Robbins to the
crime scene was a gun owned by Robbins’ brother-in-law and recovered from
Robbins’ brother-in-law’s house. There was no evidence presented at trial directly
linking Robbins to this gun. Therefore, these reports from the coroner’s office
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would have created a “reasonable probability that, had the evidence been disclosed
to the defense, the result would have been different.” Id. If these four documents
were not disclosed to the defendant, a guilty verdict on the murder charge is
certainly not worthy of our confidence.
D. Conclusion
The majority’s conclusion that these documents were not material
encourages prosecutors to play fast and loose with exculpatory evidence, believing
they can hide behind the shield of immateriality. In this case, the prosecution will
never have to respond to the allegation that it withheld critical exculpatory
documents. Such a result breeds a disrespect for the law and the constitutional due
process guarantees articulated in Brady.
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