(HC) Chadwick v. Hill ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 WILLIE ERVIN CHADWICK, No. 2:20-cv-01264 WBS GGH P 13 Plaintiff, 14 v. ORDER 15 RICK HILL, Warden 16 Defendant. 17 18 ----oo0oo---- 19 Petitioner, a state prisoner proceeding through 20 counsel, has filed this application for a writ of habeas corpus 21 pursuant to 28 U.S.C. § 2254. The matter was referred to a 22 United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(b)(1)(B) and Local Rule 302. 24 On January 25, 2021, the magistrate judge filed 25 findings and recommendations herein which were served on all 26 parties and which contained notice to all parties that any 27 objections to the findings and recommendations were to be filed 28 1 within twenty-one days. (See Docket No. 17.) Petitioner has 2 filed objections to the findings and recommendations. (See Docket 3 No. 21.) 4 Petitioner contends that the magistrate judge erred 5 when he held that a “thin reed of evidence” showing that the 6 victim entered petitioner’s house in a violent (as opposed to 7 angry) fashion could support a finding that the victim “forcibly 8 entered” petitioner’s home and was sufficient to justify 9 counsel’s decision to advise her client that he did not need to 10 testify to support his claim of self-defense. (See Docket No. 21 11 at 2.) Petitioner argues that this “this reed” of evidence 12 establishes only that the victim acted in an arguably “violent” 13 manner upon entry into the residence but not that she engaged in 14 violence or acted unlawful and forcibly in order to gain entry 15 into the residence, as required for California Criminal Jury 16 Instruction No. 3477 to apply. 1 (See id. at 3.) 17 The Supreme Court has instructed that counsel should be 18 “strongly presumed to have rendered adequate assistance and made 19 all significant decisions in the exercise of reasonable 20 professional judgment.” Cullen v. Pinholster, 563 U.S. 170, 189 21 (2011)(internal citations omitted). The court agrees that trial 22 1 California Criminal Jury Instruction No. 3477 raises 23 the presumption that the resident was reasonably afraid of death or great bodily injury if: (1) an intruder unlawfully and 24 forcibly (entered/[or] was entering) the defendant’s home; (2) the defendant knew [or reasonably believed] that an intruder 25 unlawfully and forcibly (entered/[or] was entering) the defendant’s home; (3) the intruder was not a member of the 26 defendant’s household or family;; and (4) the defendant used 27 force intended to or likely to cause death or great bodily injury to the intruder inside the home. (See Cal. Crim. Jury Instruction 28 No. 3477.) 1 counsel’s reliance on the jury instruction in lieu of 2 petitioner’s testimony was not unreasonable. The trial court 3 agreed with petitioner’s trial counsel that the jury might 4 conclude that a forcible entry had occurred given the victim’s 5 aggressive manner when she entered into the house. (See Docket 6 No. 17 at 13.) Moreover, petitioner’s trial counsel stated that 7 she had practiced putting the defendant on the stand but 8 determined that he was a poor witness who was easily rattled into 9 becoming hostile. (See id. at 8.) Petitioner’s prior domestic 10 abuse convictions, violent crimes, and other crimes of moral 11 turpitude would have been permitted for impeachment purposes had 12 petitioner decided to take the stand and were bound to have 13 significantly influenced the jury’s perception of petitioner’s 14 credibility. (See id. at 14.) Given the deference granted to 15 the tactical decisions of counsel, defendant does not come close 16 to establishing ineffective assistance of counsel, much less that 17 he was prejudiced by counsel’s conduct. 18 In accordance with the provisions of 28 U.S.C. § 19 636(b)(1)(C) and Local Rule 304, this court has conducted a de 20 novo review of this case. Having carefully reviewed the entire 21 file, the court finds the findings and recommendations to be 22 supported by the record and by proper analysis. 23 Because the court concludes that “jurists of reason” 24 could reach different conclusions with respect to plaintiff’s 25 ineffective assistance of counsel claim, the court will issue a 26 certificate of appealability on that issue under 28 U.S.C. § 27 2253(c). See Fed. R. App. P. 22(b); Jennings v. Woodford, 290 28 F.3d 1006, 1010 (9th Cir. 2002). nnn en en ne nn nn nn ee EI EER IE ESO 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed January 25, 3 2020 are adopted in full; 4 2. The habeas petition is denied; and 5 3. The court issues a certificate of appealability as 6 to petitioner’s ineffective assistance of counsel claim. 7 | Dated: March 15, 2021 pete . 4. 8 WILLIAM B. SHUBB 5 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28