(HC) Thompson v. Bird ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAFT L. THOMPSON, No. 2:22-cv-1196 TLN DB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 L. BIRD, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 18 under 28 U.S.C. § 2254. Petitioner challenges his convictions imposed by the Sacramento 19 County Superior Court in 2018 for attempted murder with a dangerous and deadly weapon, child 20 abuse likely to produce great bodily injury, and three counts of assault with a deadly weapon. 21 Petitioner alleges ineffective assistance of counsel in violation of his Sixth Amendment rights. 22 For the reasons set forth below, this court will recommend the petition be denied. 23 BACKGROUND 24 I. Facts Established at Trial 25 The California Court of Appeal for the Third Appellate District provided the following 26 factual summary: 27 //// 28 //// 1 I 2 The Facts 3 After spending the night with Misty W. and several friends at Misty W.’s aunt's house, Ronald K. drove Misty W. to pick up her infant 4 daughter from a relative's house the next morning. They picked up Misty W.’s child and then drove back to her aunt's house. When they 5 arrived, defendant had parked a U-Haul truck out front. Defendant told Misty W. he was changing the locks and “getting all [Misty W.’s 6 aunt's] shit out of” the house. He told Misty W. that if she did not tell him where her aunt was, “then we're going to have a problem.” 7 Ronald K. went inside the house, where he noticed the window in the 8 house was broken and the dog was missing. He walked outside, where defendant was seated inside the parked U-Haul. Ronald K. 9 knocked on the U-Haul's window, but when defendant did not respond and began to pull the U-Haul away, Ronald K. walked 10 towards his car so he could go out looking for the missing dog. As Ronald K. stood inside the “V” of the driver's side door of his car, 11 defendant floored the U-Haul's accelerator and smashed into Ronald K., pinning him against his car. Defendant backed up and hit Ronald 12 K. four more times. Ronald K. was able to get into the car, which defendant continued to back up and hit several more times. Misty W. 13 came out of the house with her baby. Defendant drove the U-Haul towards Misty W., who threw her baby into the grass to avoid the 14 path of the U-Haul. Defendant pinned Misty W. against the garage, backed up, and drove into Ronald K.’s car again. The truck got stuck 15 and the police arrived shortly thereafter. When Misty W. asked defendant why he tried to hit her and her baby, he responded, “I 16 wanted to kill you guys.” Ronald K. and Misty W. were both treated for injuries. 17 II 18 The Trial 19 Defense counsel made a brief opening statement, asking the jury “to 20 find [defendant] not guilty of the seven charges as he didn't commit actual crimes on June 2nd.” After the prosecution began to present 21 its case, defendant asked to make a Marsden motion.[fn 1] At the Marsden hearing, defendant said he was unhappy that his attorney 22 did not more aggressively challenge a witness on his testimony that defendant said he was going to kill Ronald K., which defendant 23 claimed was untrue. Defendant further asserted that he wanted his attorney to present defendant's statement to a police officer, saying 24 that Ronald K. had threatened defendant prior to defendant's assault. The trial court denied defendant's request to relieve his attorney, 25 finding she had properly represented defendant, and noting that the parties were constrained by the rules of evidence and the trial court's 26 rulings on evidentiary issues. The trial court said that defendant's attorney could best explain their trial strategy to defendant “when the 27 time is right,” and reminded defendant that they had not yet put on their defense case. 28 1 During closing arguments, defense counsel stated: “[Defendant] is guilty. He is guilty of the committing [sic] an assault, he is guilty of 2 false imprisonment, and he is guilty of vandalism. He is not guilty of attempt[ed] murder on Misty [W.] or [Ronald K.], he is not guilty of 3 child abuse likely to produce great bodily injury or death on the child, and he's not guilty of an assault with a deadly weapon.”[fn 2] With 4 respect to self-defense, defense counsel noted that she “sort of glossed over the self-defense instruction” but that the jury did not 5 “even have to discuss self-defense because you're not going to find that the district attorney has proved beyond a reasonable doubt that 6 on June 2nd [defendant's] actions were coupled with an intent to kill.” 7 The jury was instructed on two counts of attempted murder with a 8 deadly and dangerous weapon (Pen. Code, §§ 664, 187, subd. (a), 12022, subd. (b)(1)),[fn 3] felony child endangerment (§ 273a, subd. 9 (a)), and three counts of assault with a deadly weapon (§ 245, subd. (a)(1)). As to the felony assault charges, the jury instructions also 10 included the lesser included offense of simple assault. The jury was further instructed that self-defense was a defense to the assault 11 charges. 12 [fn 1] People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44. 13 [fn 2] Although defense counsel stated that defendant was 14 guilty of simple assault, false imprisonment, and vandalism, defendant was not charged with, and the jury was not 15 instructed on, false imprisonment or vandalism. 16 [fn 3] Undesignated statutory references are to the Penal Code. 17 18 People v. Thompson, No. C088523, 2021 WL 5754881, at 1-2 (Cal. Ct. App., Dec. 3, 2021). 19 II. Procedural Background 20 A. Judgment and Sentencing 21 The jury found defendant guilty on one count of attempted murder of Ronald K. with a dangerous and deadly weapon, child abuse likely 22 to produce great bodily injury, and three counts of assault with a deadly weapon. They could not reach a verdict on the charge of 23 attempted murder of Misty W., and the trial court granted the People's motion to dismiss the charge. 24 At sentencing, the trial court commented that the record was 25 “abundantly clear” that defendant still denied the allegations against him. The trial court sentenced defendant to an aggregate term of 16 26 years plus 75 years to life, comprised of 25 years to life for count one (attempted murder), plus one year consecutive for the weapon use 27 enhancement, 25 years to life for count five (assault with a deadly weapon), 25 years to life for count six (assault with a deadly 28 weapon), plus five years consecutive each for counts one, five, and 1 six, for a prior strike conviction. Defendant's prison terms for counts three and four were stayed pursuant to section 654. 2 3 Id. at 2 (see also ECF No. 13-1 at 201-05, 2581). 4 B. State Appeal, State Habeas, and Federal Proceedings 5 Petitioner filed a timely appeal. (ECF No. 13-5.) On December 3, 2021, the California 6 Court of Appeal denied the appeal. (ECF No. 13-7.) The California Supreme Court denied his 7 petition for review on February 16, 2022. (ECF No. 13-10.) 8 Petitioner filed pro se habeas petitions in the state courts, all of which were denied. He 9 filed his first petition in the Superior Court in December 2018. (ECF No. 13-11.) Petitioner then 10 filed a petition in the California Supreme Court in February 2019. (ECF No. 13-14.) In January 11 2020, petitioner filed a petition in the Court of Appeal and, in November 2020, filed a second 12 petition in the Superior Court. (ECF Nos. 13-13, 13-12.) 13 On July 8, 2022, petitioner filed the present federal habeas corpus petition. (ECF No. 1.) 14 He also filed two “supplements” to that petition.2 (ECF Nos. 12, 17.) Respondent filed an 15 answer (ECF No. 14) and petitioner filed a reply (ECF No. 15). 16 STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS 17 An application for a writ of habeas corpus by a person in custody under a judgment of a 18 state court can be granted only for violations of the Constitution or laws of the United States. 28 19 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or 20 application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 21 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000). 22 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas 23 corpus relief: 24 1 Respondent lodged the state court record. (See ECF No. 13.) Unless otherwise indicated, this court cites to the docket’s electronic filing numbers and pagination for the state court record. 25 26 2 Whether or not the supplements to the petition are appropriately before the court, this court has reviewed them. None of the arguments made in those supplements would change this court’s 27 opinions herein. Further, to the extent petitioner is attempting to raise claims he did not raise before the California Supreme Court, those claims are unexhausted and will not be considered 28 here. See 28 U.S.C. §2254(b)(1). 1 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 2 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 3 (1) resulted in a decision that was contrary to, or involved an 4 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 5 (2) resulted in a decision that was based on an unreasonable 6 determination of the facts in light of the evidence presented in the State court proceeding. 7 8 For purposes of applying § 2254(d)(1), “clearly established federal law” consists of 9 holdings of the United States Supreme Court at the time of the last reasoned state court decision. 10 Greene v. Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) 11 (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “‘may be 12 persuasive in determining what law is clearly established and whether a state court applied that 13 law unreasonably.’” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th 14 Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle 15 of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not 16 announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 567 U.S. 17 37 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely 18 accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be 19 accepted as correct.” Id. at 64. Further, where courts of appeals have diverged in their treatment 20 of an issue, it cannot be said that there is “clearly established Federal law” governing that issue. 21 Carey v. Musladin, 549 U.S. 70, 76-77 (2006). 22 A state court decision is “contrary to” clearly established federal law if it applies a rule 23 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court 24 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003) 25 (quoting Williams, 529 U.S. at 405-06). “Under the ‘unreasonable application’ clause of § 26 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct 27 governing legal principle from th[e] [Supreme] Court's decisions, but unreasonably applies that 28 principle to the facts of the prisoner's case.’” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) 1 (quoting Williams, 529 U.S. at 413); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A] 2 federal habeas court may not issue the writ simply because that court concludes in its independent 3 judgment that the relevant state-court decision applied clearly established federal law erroneously 4 or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411; 5 see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Andrade, 538 U.S. at 75 (“It is not 6 enough that a federal habeas court, in its independent review of the legal question, is left with a 7 firm conviction that the state court was erroneous.” (Internal citations and quotation marks 8 omitted.)). “A state court's determination that a claim lacks merit precludes federal habeas relief 9 so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision.” 10 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 11 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a 12 state prisoner must show that the state court's ruling on the claim being presented in federal court 13 was so lacking in justification that there was an error well understood and comprehended in 14 existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. 15 There are two ways a petitioner may satisfy subsection (d)(2). Hibbler v. Benedetti, 693 16 F.3d 1140, 1146 (9th Cir. 2012). He may show the state court’s findings of fact “were not 17 supported by substantial evidence in the state court record” or he may “challenge the fact-finding 18 process itself on the ground it was deficient in some material way.” Id. (citing Taylor v. Maddox, 19 366 F.3d 992, 999-1001 (9th Cir. 2004), abrogated by Murray v. Schriro, 745 F.3d 999-1000 (9th 20 Cir. 2014)3); see also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir. 2014) (If a state court makes 21 factual findings without an opportunity for the petitioner to present evidence, the fact-finding 22 process may be deficient and the state court opinion may not be entitled to deference.). Under the 23 3 In Kipp v. Davis, 971 F.3d 939, 953 n.13 (9th Cir. 2020), the Court of Appeals explained the 24 effect of the decision in Murray on Taylor: In Murray I, we recognized that Pinholster foreclosed Taylor’s suggestion that an 25 extrinsic challenge, based on evidence presented for the first time in federal court, may occur once the state court's factual findings survive any intrinsic challenge under section 26 2254(d)(2). Murray I, 745 F.3d at 999–1000. Kipp does not present an extrinsic challenge 27 so Murray I’s abrogation of Taylor on this ground is irrelevant here. Similarly, in the present case, there is no extrinsic challenge based on evidence presented for the 28 first time in federal court so Murray’s limitation of Taylor is not relevant. 1 “substantial evidence” test, the court asks whether “an appellate panel, applying the normal 2 standards of appellate review,” could reasonably conclude that the finding is supported by the 3 record. Hibbler, 693 F.3d at 1146. 4 The second test, whether the state court’s fact-finding process is insufficient, requires the 5 federal court to “be satisfied that any appellate court to whom the defect [in the state court’s fact- 6 finding process] is pointed out would be unreasonable in holding that the state court’s fact-finding 7 process was adequate.” Hibbler, 693 F.3d at 1146-47 (quoting Lambert v. Blodgett, 393 F.3d 8 943, 972 (9th Cir. 2004)). The state court’s failure to hold an evidentiary hearing does not 9 automatically render its fact finding process unreasonable. Id. at 1147. Further, a state court may 10 make factual findings without an evidentiary hearing if “the record conclusively establishes a fact 11 or where petitioner’s factual allegations are entirely without credibility.” Perez v. Rosario, 459 12 F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)). 13 The court looks to the last reasoned state court decision as the basis for the state court 14 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 15 “[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from 16 a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the 17 reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en 18 banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim 19 has been presented to a state court and the state court has denied relief, it may be presumed that 20 the state court adjudicated the claim on the merits in the absence of any indication or state-law 21 procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be 22 overcome by showing “there is reason to think some other explanation for the state court's 23 decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). 24 Similarly, when a state court decision on a petitioner's claims rejects some claims but does not 25 expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that 26 the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 293 (2013). 27 When it is clear, that a state court has not reached the merits of a petitioner’s claim, the 28 deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court 1 must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 2 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003). 3 If a petitioner overcomes one of the hurdles posed by section 2254(d), the federal court 4 reviews the merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 5 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear 6 both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is 7 such error, we must decide the habeas petition by considering de novo the constitutional issues 8 raised.”). For the claims upon which petitioner seeks to present evidence, petitioner must meet 9 the standards of 28 U.S.C. § 2254(e)(2) by showing that he has not “failed to develop the factual 10 basis of [the] claim in State court proceedings” and by meeting the federal case law standards for 11 the presentation of evidence in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S. 12 170, 186 (2011). 13 DISCUSSION 14 While not entirely clear, petitioner appears to raise all claims he raised before the state 15 court. (See ECF No. 1 at 5.) On appeal, he contended that his trial attorney violated his Sixth 16 Amendment rights by conceding his guilt to simple assault. Petitioner filed several state habeas 17 petitions. Petitioner can only succeed on a claim petitioner properly exhausted by raising in the 18 state’s highest court. See 28 U.S.C. §2254(b)(1). Therefore, this court looks to petitioner’s one 19 state habeas petition to the California Supreme Court to determine his remaining claims. In that 20 state petition, petitioner raised numerous additional claims of ineffective assistance of counsel 21 and one claim of trial court error. 22 I. Counsel’s Concession that Petitioner Committed Simple Assault 23 In her closing argument, petitioner’s counsel conceded that petitioner committed simple 24 assault: “[Defendant] is guilty. He is guilty of the [sic] committing an assault, he is guilty of false 25 imprisonment, and he is guilty of vandalism. He is not guilty of attempt[ed] murder on Misty 26 [W.] or [Ronald K.], he is not guilty of child abuse likely to produce great bodily injury or death 27 //// 28 //// 1 on the child, and he's not guilty of an assault with a deadly weapon.” (RT 432.4) Petitioner 2 contends counsel violated his Sixth Amendment rights to choose his defense. Petitioner states 3 that he chose to rely on self-defense and did not want to concede guilt to even a lesser offense. 4 A. Legal Standards 5 Petitioner relies on the Supreme Court’s decision in McCoy v. Louisiana, 584 U.S. ___, 6 138 S. Ct. 1500 (2018). In McCoy, the defendant maintained his innocence and insisted he did 7 not commit the charged offenses. McCoy, 138 S. Ct. at 1505. However, at the guilt phase of his 8 capital trial, defense counsel overrode the defendant’s decision to plead innocence and admitted 9 defendant’s guilt to the jury. Id. Defense counsel believed that confessing guilt was the best way 10 to avoid the death penalty. Id. 11 The Supreme Court determined that the defendant’s Sixth Amendment rights were 12 violated because the decision to plead innocence or admit guilt was the defendant’s decision 13 alone. Id. While “[t]rial management is the lawyer's province,” which includes deciding “‘what 14 arguments to pursue, what evidentiary objections to raise, and what agreements to conclude 15 regarding the admission of evidence,” the fundamental decisions about “whether to plead guilty, 16 waive the right to a jury trial, testify in one's own behalf, and forgo an appeal” are reserved for 17 the client. Id. at 1508 (internal citations omitted). As the Court explained in McCoy, the latter 18 category of decisions “are not strategic choices about how best to achieve a client's objectives; 19 they are choices about what the client's objectives in fact are.” Id. at 1508-09. When, contrary to 20 the defendant’s express wish to maintain his innocence, counsel has admitted the defendant’s 21 guilt, the error is structural and reversal is required without any need to show actual prejudice. Id. 22 at 1510-11. 23 B. Decision of the State Court 24 Defendant contends that defense counsel improperly conceded his guilt when she asserted at closing that defendant was guilty of 25 committing simple assault.[fn 4] Relying primarily on McCoy v. Louisiana (2018) ––– U.S. ––––, 138 S.Ct. 1500, [200 L.Ed.2d 821] 26 (McCoy), defendant argues that his attorney violated his Sixth Amendment right to counsel by overriding defendant's desire to 27 28 4 The Record of Transcript (“RT”) is at ECF No. 13-3. 1 maintain his innocence and pursue acquittal. We are not persuaded.[fn 5] 2 “[C]ertain decisions regarding the exercise or waiver of basic trial 3 rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant ... has ‘the ultimate authority’ to 4 determine ‘whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.’ [Citations.] Concerning those 5 decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action.” (Florida v. 6 Nixon (2004) 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565.) Accordingly, in McCoy, the United States Supreme Court held that 7 defendant has the sole authority to decide whether to admit guilt or legal strategy. (McCoy, supra, 200 L.Ed.2d at p. 827.) 8 In McCoy, the defendant was charged with three murders and 9 “vociferously insisted on his innocence and adamantly objected to any admission of guilt.” (McCoy, supra, 200 L.Ed.2d at p. 825.) 10 However, his attorney told the jury in his opening statement that there was “ ‘no way reasonably possible’ that they could hear the 11 prosecution's evidence and reach ‘any other conclusion than Robert McCoy was the cause of these individuals’ death.’ ” (Id. at p. 828.) 12 The defendant immediately protested, complaining to the trial court outside the jury's earshot that his attorney was “ ‘selling [him] out’ ” 13 by admitting he committed the murders. (Ibid.) The trial court cautioned the defendant against further outbursts and permitted his 14 counsel to continue his opening statement, during which he repeated that defendant committed the murders. (Id. at pp. 828-829.) During 15 trial, the defendant testified on his own behalf, maintaining his innocence, and presenting a highly dubious alibi defense. (Ibid.) In 16 closing, defense counsel “reiterated that McCoy was the killer,” telling “the jury that he ‘took [the] burden off of [the prosecutor].’ ” 17 The jury found the defendant guilty of first degree murder on all three counts. (Id. at p. 829.) 18 The defendant filed a motion for new trial arguing that “the trial court 19 violated his constitutional rights by allowing [counsel] to concede McCoy ‘committed three murders,’ [citation], over McCoy's 20 objection.” (McCoy, supra, 200 L.Ed.2d at p. 829.) The Louisiana Supreme Court denied the motion for new trial, “ruling that defense 21 counsel had authority so to concede guilt, despite the defendant's opposition to any admission of guilt ... because counsel reasonably 22 believed that admitting guilt afforded McCoy the best chance to avoid a death sentence.” (Ibid.) 23 The United States Supreme Court reversed, finding “counsel's 24 admission of a client's guilt over the client's express objection” is structural error, as it “blocks the defendant's right to make a 25 fundamental choice about his own defense.” (McCoy, supra, 200 L.Ed.2d at p. 826.) It explained that “[w]hen a client expressly asserts 26 that the objective of ‘his defen[s]e’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and 27 may not override it by conceding guilt. [Citations.]” (Id. at p. 831.) Thus, the Supreme Court concluded that “admission of [defendant's] 28 1 guilt despite [defendant's] insistent objections [is] incompatible with the Sixth Amendment.” (Id. at p. 834.) 2 McCoy is only implicated where the attorney concedes guilt “over 3 the defendant's intransigent and unambiguous objection.” (McCoy, supra, 200 L.Ed.2d at pp. 829, 834.) “When counsel informs the 4 defendant of the strategy counsel believes to be in the defendant's best interest” and the defendant remains silent, “counsel's strategic 5 choice is not impeded by any blanket rule demanding the defendant's explicit consent.” (Florida v. Nixon, supra, 543 U.S. at p. 192, 125 6 S.Ct. 551.) To obtain relief under McCoy, the record must show: (1) that defendant's plain objective is to maintain his innocence and 7 pursue an acquittal, and (2) that trial counsel disregards that objective and overrides his client by conceding guilt. (People v. Eddy (2019) 8 33 Cal.App.5th 472, 482-483, 244 Cal.Rptr.3d 872, citing McCoy, at pp. 827, 829-833.) “[W]e have found no authority, nor has 9 [defendant] cited any, allowing extension of McCoy's holding to a situation where the defendant does not expressly disagree with a 10 decision relating to his right to control the objective of his defense.” (People v. Lopez (2019) 31 Cal.App.5th 55, 66, 242 Cal.Rptr.3d 11 451.) 12 Here, unlike in McCoy, defendant did not communicate to his attorney, or to the trial court, that he objected to his counsel's 13 concession of guilt during the closing argument. Although defendant denied guilt and sought to admit evidence supporting the theory that 14 he was acting in self-defense, nothing in the record indicates that he voiced an “intransigent objection” to his counsel's trial strategy to 15 concede that he committed simple assault. Defendant also did not move for a new trial based on his counsel's admission. Without any 16 evidence that defendant objected to counsel's concession, or otherwise made clear to counsel that he did not wish to concede guilt 17 of simple assault during closing arguments, McCoy does not apply. (See, e.g., People v. Lopez, supra, 31 Cal.App.5th at p. 66 [McCoy 18 inapplicable where there was no evidence the defendant objected to his counsel's decision to concede guilt]; People v. Franks (2019) 35 19 Cal.App.5th 883, 891, 248 Cal.Rptr.3d 12 [McCoy inapplicable where the defendant denied guilt but never made clear a desire to 20 pursue innocence as his defense].) 21 [fn 4] Defendant argues that his counsel improperly conceded guilt on assault, vandalism, and false imprisonment, but only 22 assault is at issue, because defendant was not charged with vandalism or false imprisonment. 23 [fn 5] The People's brief analyzes this as an ineffective 24 assistance of counsel claim, which is not the correct standard. Under McCoy, a counsel's admission of guilt against a 25 defendant's express wishes is structural error, which is not subject to harmless error review. (McCoy, supra, 200 L.Ed.2d 26 at p. 833.) 27 Thompson, 2021 WL 5754881, at *2-3. 28 //// 1 C. Discussion of McCoy Error 2 The Court of Appeal correctly cited the legal standard. In particular, the state court noted 3 the Supreme Court’s reliance in McCoy on the fact that petitioner McCoy made continual and 4 “intransigent” objections to any concession of guilt. The Court stressed that a structural Sixth 5 Amendment violation occurred in the “stark scenario” where “the defendant repeatedly and 6 adamantly insisted on maintaining his factual innocence despite counsel's preferred course.” 7 McCoy,138 S. Ct. at 1510. 8 In the present case, the state court found that “defendant did not communicate to his 9 attorney, or to the trial court, that he objected to his counsel's concession of guilt during the 10 closing argument.” The record supports the state court’s decision. 11 At the Marsden hearing, petitioner complained about some of counsel’s conduct. (ECF 12 No. 25.) He told the court that he felt his attorney did not adequately question witnesses who 13 testified that they heard petitioner make inculpatory statements. He also felt the attorney was not 14 questioning witnesses about the “type of person” they are. Petitioner did not indicate that he 15 would object to any concession of guilt. Rather, petitioner expressed concerns about details of his 16 attorney’s conduct with respect to the admission of evidence and examination of witnesses. In 17 denying petitioner’s motion, the trial court told petitioner that it was his attorney’s job to 18 formulate strategy and petitioner was objecting to strategic decisions. 19 Petitioner’s reliance on McCoy is unavailing. He presents no evidence that he informed 20 his attorney that he objected to any concession of guilt. Petitioner’s argument is similar to that 21 made by the appellant in United States v. Audette, 923 F.3d 1227 (9th Cir. 2019). Like petitioner 22 here, Audette sought a hearing before the trial court to challenge his attorney’s conduct. Audette 23 argued before the Ninth Circuit that he had challenged his attorney’s refusal to honor his desire to 24 assert his innocence. However, review of the transcript of that hearing showed that Audette was 25 challenging his attorney’s strategies, not the objectives of the defense. The Ninth Circuit 26 explained why Audette’s challenge under McCoy was baseless: 27 McCoy’s upshot is that a criminal defendant has the autonomy to decide the objectives of his defense. Although a represented 28 defendant surrenders control over tactical decisions, such as which 1 witnesses to call and which arguments to advance, he retains the authority to make decisions such as “whether to plead guilty, waive 2 the right to a jury trial, testify in one's own behalf, and forgo an appeal.” With these principles in mind, McCoy held that the decision 3 of whether to admit guilt remains with the client. Audette contends that the district court erred under McCoy because “there is ample 4 evidence suggesting that Mr. Audette's request for self- representation was based on his desire to assert his innocence and his 5 attorney's refusal to honor that objective.” That contention, however, is not supported by the record. At Audette's Faretta hearing, Borrelli 6 explained that Audette disagreed with “the arguments that I may make ... he doesn't like some of them.” The disagreement between 7 Audette and Borrelli was not over the objectives of Audette's defense, therefore, but instead over the ways to achieve those 8 objectives. Such tactical decisions are within the attorney's province. 9 Audette, 932 F.3d at 1235-36 (citations omitted). 10 As set out above, petitioner here also challenged only his counsel’s strategy, not the 11 objectives of the defense. The defense at trial focused on both an absence of an intent to kill or 12 greatly harm the victims and self-defense. Petitioner has presented no evidence that he objected, 13 either before the fact or immediately after, to counsel’s arguments focusing on his lack of intent 14 and conceding that he had committed simple assault. In fact, after the verdict was read, petitioner 15 addressed the jury about the intent finding: “You people are crazy. I didn't try to kill nobody. She 16 sat here and explained it as good as she possibly could.” (RT 480.) Petitioner’s challenge to his 17 counsel’s concession of guilt to a lesser offense should be denied. 18 II. Petitioner’s Claims Raised in the State Habeas Petition 19 In his state court petitions for writ of habeas corpus, petitioner made a number of claims 20 of ineffective assistance of counsel. Petitioner’s federal petition is very brief and he simply 21 references his state filings and attaches copies of parts of his appellate briefs. Construing 22 petitioner’s pro se filing liberally, this court looks to the claims petitioner raised in his habeas 23 petition to the state supreme court to determine what he seeks to raise here.5 As best this court 24 //// 25 //// 26 27 5 A petitioner can only succeed on federal habeas claims that they raised in the state’s highest court. 28 U.S.C. §2254(b)(1). Therefore, any additional claims petitioner may have raised in his 28 petitions to the state superior and appellate court are not considered here. 1 can tell, petitioner alleged ineffective assistance of counsel and made one argument that the trial 2 court erred in denying his Marsden motion.6 3 With respect to the claim of trial court error, petitioner can only succeed on that claim by 4 first showing that “the trial court failed to recognize that the defendant's complaints as to his 5 counsel were such that, if true, counsel's performance fell below the Sixth Amendment standard 6 for effective assistance of counsel.” Robinson v. Kramer, 588 F.3d 1212, 1216 (9th Cir. 2009). 7 Petitioner must then show that the California Supreme Court’s denial of the claim was 8 unreasonable under 28 U.S.C. §2254(d). During the Marsden hearing, petitioner complained 9 about his counsel’s questioning of witnesses and about her failure to bring in some evidence. In 10 denying the motion, the trial judge noted that many of petitioner’s complaints involved strategic 11 decisions, some of the evidence petitioner sought to bring in had been ruled inadmissible, and 12 concluded that petitioner’s counsel had “properly represented” him. Petitioner fails to show the 13 arguments he made at the Marsden hearing demonstrated that counsel’s conduct “‘so undermined 14 the proper functioning of the adversarial process’ that the defendant was denied a fair trial.” 15 Richter, 562 U.S. at 110 (The Sixth Amendment does not guarantee “perfect representation, only 16 a ‘reasonably competent attorney.’” (quoting Strickland v. Washington, 466 U.S. 668, 687 17 (1984).) Petitioner’s claim that the trial court erred in denying his Marsden motion should be 18 denied. 19 Petitioner contends his trial attorney was constitutionally ineffective when she: (1) failed 20 to cross-examine Officers Zumstein and Lagg to show that their reports did not reflect that 21 petitioner told them he had been threatened; (2) failed to introduce evidence that witness Shadena 22 Johnson told an investigator that she saw petitioner backing into the driveway, which would have 23 showed he did not intend to hit Misty Wilson; (3) failed to put on witnesses Lois Keach and 24 Nataysai Barr to testify that he was backing up; (4) failed to cross-examine Wilson about her lies 25 to the 911 operator; (5) failed to question William Muldrow about whether he could have 26 27 6 Petitioner also asks the court to “compel” charges to be brought against numerous people for the harm they caused him at the time of the events and since then. These are not claims challenging 28 his conviction and therefore are not appropriately raised in a habeas proceeding. 1 misheard petitioner say he intended to kill the victim due to all the “chaos;” (6) failed to elicit 2 testimony about threats made by Keys and Wilson to show petitioner acted in self-defense; (7) 3 failed to elicit testimony that Keys held petitioner’s phone “hostage,” which prevented him from 4 calling 911; (8) failed to cross-examine Keys with petitioner’s version of the events; (9) failed to 5 present testimony of Shadena Johnson that she heard petitioner say “I wasn’t the bad guy” and 6 “the other people jumped me;” (10) failed to present the testimony of W. Espinosa that he heard 7 petitioner say “the guy in the green Toyota (Ronald Keyes) threated to kill me;” (11) failed to 8 argue that petitioner could have killed Keyes when Keyes was standing in the doorway of his car 9 but did not; (12) failed to question Wilson about her statement to Detective Lagg that petitioner’s 10 car only came into contact with her once; and (13) failed to point out the tire marks on the 11 driveway to show petitioner was backing up. (ECF No. 13-14.) 12 The California Supreme Court summarily denied petitioner’s claims. (ECF No. 13-14 at 13 1.) This court looks to the last reasoned decision of a state court on petitioner’s claims. Stanley, 14 633 F.3d at 859. Petitioner raised most of the claims listed above in his 2018 petition to the 15 superior court. The superior court issued a reasoned opinion. Therefore, this court considers the 16 superior court’s opinion as the last reasoned decision on those claims.7 17 For the claims petitioner raised in his petition to the California Supreme Court but not in 18 the petition to the superior court in 2018, petitioner bears the burden of “showing there was no 19 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. This court “must 20 //// 21 //// 22 //// 23 7 It is not entirely clear the look-through doctrine applies here. Petitioner filed his petition in the 24 California Supreme Court before the superior court had resolved the 2018 petition. However, the superior court rendered its decision in May 2019. (ECF No. 13-11 at 1.) Because the California 25 Supreme Court rendered its decision after that date – in June 2019 – application of the look- through doctrine appears appropriate. Even if it is not, because this court finds below that the 26 trial court’s denial of petitioner’s claims was reasonable, the California Supreme Court’s 27 unexplained denial of the claims was necessarily reasonable as well because when the federal court reviews an unexplained state court decision, the federal court must determine whether there 28 is any reasonable basis for the state court’s denial. Richter, 562 U.S. at 98. 1 determine what arguments or theories supported or, as here, could have supported, the state 2 court's decision.” Id. at 102.8 3 A. Legal Standards 4 To succeed on a claim of ineffective assistance of counsel, a petitioner must show that (1) 5 his counsel's performance was deficient and that (2) the “deficient performance prejudiced the 6 defense.” Strickland, 466 U.S. at 687. Counsel is constitutionally deficient if his or her 7 representation “fell below an objective standard of reasonableness” such that it was outside “the 8 range of competence demanded of attorneys in criminal cases.” Id. at 687-88 (internal quotation 9 marks omitted). Prejudice is found where “there is a reasonable probability that, but for counsel's 10 unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A 11 reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id. 12 “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. 13 at 112. 14 A reviewing court “need not determine whether counsel’s performance was deficient 15 before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . 16 . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice 17 . . . that course should be followed.” Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) 18 (quoting Strickland, 466 U.S. at 697), amended and superseded on other grounds, 385 F.3d 1247 19 (9th Cir. 2004); United States v. Ray, No. 2:11-cr-0216-MCE, 2016 WL 146177, at *5 (E.D. Cal. 20 Jan. 13, 2016) (citing Pizzuto, 280 F.3d at 954), aff’d, 735 F. App’x 290 (9th Cir. 2018). 21 B. Decision of the State Superior Court 22 The Court has received and considered the above-entitled petition for writ of habeas corpus. The petition is DENIED. 23 24 8 Petitioner may have raised some or all of his California Supreme Court claims in his subsequent 25 petitions to the superior and appellate courts in 2020. (See ECF Nos. 13-12, 13-13.) The purpose of looking to the last-reasoned decision of a state court is the presumption that the state’s higher 26 court adopted that reasoning when it issued a summary denial. Stanley, 633 F.3d at 859. Because 27 the California Supreme Court could not, in 2019, have considered any decisions made by courts in 2020, this court does not look to those opinions when reviewing petitioner’s claims under 28 28 U.S.C. § 2254(d). 1 A petitioner seeking relief by way of habeas corpus has the burden of stating a prima facie case entitling him to relief. (In re Bower 2 (1985) 38 Cal.3d 865, 872.) A petition for writ of habeas corpus should attach as exhibits all reasonably available documentary 3 evidence or affidavits supporting the claim. (People v. Duvall (1995) 9 Cal.4th 464, 474.) To show constitutionally inadequate assistance 4 of counsel, a defendant must show that counsel's representation fell below an objective standard and that counsel's failure was prejudicial 5 to the defendant. (In re Alvernaz (1992) 2 Cal.4th 924, 937.) It is not a court's duty to second-guess trial counsel and great deference is 6 given to trial counsel's tactical decisions. (In re Avena (1996) 12 Cal.4th 694, 722.) To prevail on an ineffective assistance claim, the 7 defendant must establish that the record discloses "no conceivable tactical purpose" for counsel's act or omission. (Lewis, supra, 25 8 Cal.4th at 674-675.) An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of 9 counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.) Actual prejudice must be shown, meaning that there is a reasonable 10 probability that, but for the attorney's error(s), the result would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 694.) 11 A jury convicted Petitioner of attempted murder and three counts of 12 assault with a deadly weapon, stemming from an incident in which Petitioner intentionally hit the victims with a moving van. 13 [Petitioner] [c]ontends that his attorney performed inadequately by not introducing or emphasizing certain evidence that he claims would 14 have shown that he did not intend to strike the victims. Specifically, he claims the attorney erred by failing to: 1) use statements made by 15 Shadena Johnson to investigators that he said, "I wasn't the bad guy and the other people had jumped him," and that she did not believe 16 Petitioner intentionally struck Misty Wilson and her baby; 2) introduce prior statements from Jonathan Keach that the victim was 17 in disbelief that he had hit her; 3) point out evidence presented at trial depicting tire marks on the side of the driveway where the van hit the 18 garage and the victim; 4) present the tape recording of his police interview to the jury; 5) direct attention to the lack of serious damage 19 to the garage door; 6) use Petitioner's questions while cross- examining William Muldrow; 7) subpoena Claresa Lyons to refute 20 the victim's 911 call; 8) play California Highway Patrol officer's audio in which Petitioner told him that one of the victims assaulted 21 him and provoked the incident; 9) point out the "obvious lies" told by the victims; and 10) introduce statements by Walter Espinosa that 22 Petitioner had reported that the victim was threatening him. 23 Here, Petitioner has not shown that any of these purported failures by his attorney would have changed the outcome of this case. There 24 was more than sufficient evidence from which the jury could have deduced guilt. There were multiple neighbors who witnessed the 25 event. There was evidence that Petitioner drove a moving van into a car occupied by the victim, Ronald Keyes, smashing the car multiple 26 times. Through his own allegations in this petition, he concedes that his actions were deliberate, although he claims he acted to prevent 27 Keyes from harming him. In addition, Petitioner claims his attorney prevented the introduction of evidence that proves that he hit Misty 28 Wilson and her child on accident, and that he did not see them. But 1 there was evidence that he was driving forward towards the victims looking at them through the windshield. Also, the responding officer 2 testified that Petitioner told him that he drove at Wilson with the intent to scare her. 3 Furthermore, he does not explain how some the alleged omissions 4 can even be considered error. For example, he does not explain how the tire marks on the driveway or the recorded police interview would 5 have been crucial to his defense. Likewise, he has not shown that any testimony from Claresa Lyons regarding the victim's credibility 6 would have had any effect, particularly in light of the number of witnesses to the event. In addition, Johnson and Keach both testified 7 on his behalf at trial, negating the necessity of introducing their earlier statements to police. The defense did introduce evidence that 8 Petitioner was operating under the belief that one of the victim's [sic] was threatening him. The introduction of more evidence to that effect 9 from additional witnesses would have been merely cumulative. As to his claim that his attorney erred by not asking witness Muldrow if he 10 had possibly misheard Petitioner's statement that "I was trying to kill the guy in the Toyota," it cannot be viewed as error. His attorney's 11 purported reasoning - the high likelihood that the witness would answer that he did not mishear the statement - was a justifiable reason 12 for not raising the question. Evidence of the lack of damage to the garage door was not relevant to whether he intentionally struck 13 Wilson and her child with the truck. Lastly, none of the "obvious lies" listed in the petition pertained to anything crucial to his defense. 14 For example, he does not show that the accuracy of the length of time the resident of the home had actually owned her dog or the amount 15 of time that passed between when bystanders subdued Petitioner and when police arrived was of such importance that an objection to the 16 information would have impacted the outcome of the case. 17 As none of Petitioner's claims are meritorious or prejudicial, the petition is denied. 18 19 In re Thompson, No. 18HC00595 (Sac. Co. Sup. Ct. May 24, 2019) (ECF No. 13-11 at 1-2). 20 C. Discussion 21 The state court held petitioner failed to show a reasonable likelihood that the purported 22 failures of counsel would have changed the outcome. This court agrees. Below, this court finds 23 petitioner fails to show he was prejudiced by counsel’s alleged actions or inactions. The state 24 court decisions denying petitioner’s many ineffective assistance of counsel claims were not 25 contrary to or an unreasonable application of clearly established federal law. 26 1. Failure to Elicit Evidence of Threats made by Wilson and Keyes 27 Petitioner claims that his attorney failed to elicit testimony from several witnesses that 28 petitioner made statements at the time that he had been threatened by Misty Wilson and Ronald 1 Keyes. The superior court noted that the defense did put on testimony that petitioner had been 2 threatened by the victims and held that any additional testimony would have been cumulative. 3 Nataysai Barr testified that when petitioner was asked by bystanders why he had driven at 4 Wilson and Keyes, Barr heard petitioner say “they were trying to fight him, jump him.” (RT 5 316.) Shadena Johnson testified that she heard petitioner say they hurt him first. (RT 330.) 6 In addition, Officer Zumstein testified that petitioner told him Keyes “verbally threatened 7 him and said he would find him and make him pay for losing the dog.” (RT 296-97.) Petitioner 8 also told Zumstein that he drove back to the house because he wanted to “get the other gentleman 9 first” and he wanted to “hurt the guy . . . so that he would be scared to come after” petitioner. 10 (RT 297-98.) 11 The jury thus heard evidence that petitioner’s conduct may have been motivated by threats 12 to his safety. Petitioner contends evidence of the threats would have supported his claim of self- 13 defense. As the state court pointed out, additional evidence would have been cumulative. 14 Moreover, petitioner fails to show a reasonable likelihood he would have succeeded on a self- 15 defense theory had additional evidence of threats come in. The evidence presented at trial 16 showed that after the verbal altercation with Wilson and Keyes, petitioner pulled out of the 17 driveway onto the street.9 (RT 83, 85 (testimony of Ronald Keyes); ECF No. 13-1 at 84-85 18 (Misty Wilson 911 call).) In fact, Officer Zumstein testified that petitioner told him that he 19 “drove away . . . down to the intersection which is maybe two houses away.” (RT 297.) “[A]t 20 that point he turned the van around because he decided he was going to get the other gentleman 21 first and he was going to put some hurt on him.” (Id.; see also RT 86-87 (testimony of Ronald 22 Keyes).) 23 The jury was instructed that petitioner acted in lawful self-defense if he “reasonably 24 believed he was in imminent danger of being killed or suffering great bodily injury.” (RT 401.) 25 26 9 In a supplement, petitioner states that the 911 call shows he did not leave the driveway. (See ECF No. 12 at 2.) The transcript of the portion of the 911 call played for the jury does not 27 support petitioner’s assertion. During the call, Misty Wilson stated that petitioner had “just pulled off in a U-haul” before she told the dispatcher, “Oh my God. He’s hitting my car.” (ECF 28 No. 13-1 at 84-85.) 1 “Belief in future harm is not sufficient no matter how great or how likely the harm is believed to 2 be.” (Id.) Petitioner fails to show a reasonable likelihood the jury would have found that at the 3 time he drove the U-Haul into Keyes and Wilson, he was under a threat of “imminent” harm. 4 2. Failure to Elicit Evidence that Petitioner did not Intend to Hurt Wilson 5 Petitioner argues evidence that he backed into the driveway was important to show he did 6 not intend to hurt Misty Wilson or the baby. The defense did put on that evidence. 7 Shadena Johnson testified that as she was driving by, she saw a “U-Haul backing up into 8 the girl.” (RT 322-23.) Lois Keach testified she saw the U-Haul reverse into the woman and 9 child. (RT 341.) She also testified that she saw the U-Haul truck that “was backed into a green 10 car.” (RT 338.) As she watched, Keach saw the truck “reverse[] back into the green car again.” 11 (Id.) The U-Haul truck “rammed into the car again.” (RT 339.). Keach’s husband, John Keach, 12 who was a passenger in the car, testified that he saw “a U-Haul truck backed into a green car.” 13 (RT 351.) As he watched, the U-Haul truck drove in reverse “into the house and he hit a woman 14 and her child.” (RT 352.) 15 The defense presented additional evidence that petitioner did not intend to hurt Wilson 16 and her baby. William Muldrow testified on cross-examination that petitioner said he did not 17 mean to hit Wilson or the child. (RT 209-10.) Officer Zumstein testified that petitioner told him 18 he did not intend to hurt Wilson, just to scare her. (RT 299, 381.) 19 With respect to the lack of any investigation regarding the tire marks on the driveway, 20 petitioner fails to demonstrate that had they been investigated, they would have shown that 21 petitioner was backing up or that he braked in an attempt not to hit Wilson. Moreover, his 22 counsel argued in closing that the marks showed petitioner braked to avoid hitting Wilson, as he 23 told police officers. (RT 445.) Even if the jury found petitioner was driving backward, that fact 24 does not negate a finding that he did so with the intent to harm Wilson. 25 Petitioner also argues that his attorney should have directed the jury’s attention to the fact 26 the garage door was not seriously damaged. The jury would have seen the extent of the damage 27 to the garage from the photos presented at trial . Any argument from counsel would have had 28 little or no effect on the jury’s consideration of that damage. 1 He fails to explain how it is reasonably likely any additional evidence would have lead the 2 jury to conclude he did not intend to hurt Wilson. It’s worth noting that the jury did not convict 3 petitioner of attempting to murder Wilson. Rather, it convicted him of assaulting her. Despite 4 petitioner’s protestations to the contrary, the jury had sufficient evidence to conclude petitioner 5 drove at Wilson with an intent to cause her harm. 6 3. Failure to Adequately Cross-examine Witnesses 7 Petitioner contends his counsel should have asked William Muldrow whether he may have 8 misheard petitioner say he intended to kill Ronald Keyes. Because petitioner presents no 9 evidence that Muldrow would have agreed he may have misheard, the only arguable effect of the 10 question would have been to place that possibility in the jury’s mind. Counsel did raise that 11 possibility by arguing in closing that the jury should evaluate Muldrow’s statement with caution 12 “because very easily could Mr. Muldrow have heard wrong.” (RT 440.) Petitioner suffered no 13 prejudice as a result of counsel’s failure to ask Muldrow if he might have misheard. 14 Petitioner also contends his counsel failed to cross-examine Misty Wilson about her “lies” 15 to the 911 operator and her statement to a police officer that petitioner only hit her once. 16 However, on cross-examination, petitioner’s attorney did elicit testimony from Wilson that 17 petitioner hit her one time. (RT 269.) To the extent petitioner contends Wilson lied in the 911 18 call, he does not explain why any attempt to confront her on her statements would have been 19 successful or demonstrated she was lying about something that may have changed the outcome of 20 trial. During direct examination, Wilson explained that her statement during the 911 call that 21 “now he’s going to get fucked up good” was directed to Keyes and meant that Wilson’s aunt was 22 going to be angry at petitioner for losing the dog. (RT 253.) As explained above, even if 23 petitioner could show Wilson’s statement was a threat, he fails to demonstrate he could have 24 succeeded on a theory of self-defense. 25 Petitioner alleges his attorney failed to elicit testimony that Ronald Keyes held petitioner’s 26 phone “hostage,” and failed to cross-examine Keyes about petitioner’s version of the events. 27 With respect to the cell phone, petitioner fails to point to any evidence that Keyes did, in fact, 28 have petitioner’s cell phone or, even if he did, why that fact would have been relevant to 1 petitioner’s defenses. With respect to cross-examining Keyes, petitioner’s counsel asked Keyes 2 whether he had threated petitioner and Keyes denied that he had. (RT 121, 134.) Petitioner does 3 not explain what else his counsel should have asked and why those questions would have made a 4 difference. 5 4. Failure to Argue Evidence Showing Petitioner did not Intend to Kill Keyes 6 This claim has no basis because petitioner’s counsel did, in fact, argue that the evidence 7 showed petitioner could have killed Ronald Keyes if he had wanted to. (RT 441.) 8 CONCLUSION 9 The state court held that petitioner failed to demonstrate that he objected to his attorneys’ 10 concession in closing argument that he committed simple assault. Therefore, the state court 11 concluded, petitioner’s Sixth Amendment claim under McCoy v. Louisiana fails. That decision 12 was not contrary to or an unreasonable application of clearly established federal law. The state 13 court further held that petitioner failed to establish he was prejudiced under Strickland v. 14 Washington by any further failures of trial counsel. The state court’s rejection of petitioner’s 15 various ineffective assistance of counsel claims was not contrary to or an unreasonable 16 application of clearly established federal law. Because petitioner does not satisfy the 17 requirements of 28 U.S.C. §2254(d), his claims should fail. 18 For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner’s petition 19 for a writ of habeas corpus be denied. 20 These findings and recommendations will be submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after 22 being served with these findings and recommendations, any party may file written objections with 23 the court and serve a copy on all parties. The document should be captioned “Objections to 24 Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be 25 filed and served within seven days after service of the objections. The parties are advised that 26 failure to file objections within the specified time may result in waiver of the right to appeal the 27 district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In the objections, the 28 party may address whether a certificate of appealability should issue in the event an appeal of the 1 | judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the district court must 2 | issue or deny a certificate of appealability when it enters a final order adverse to the applicant). 3 | Dated: November 7, 2023 4 5 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 | DLB:9 DB Prisoner Inbox/Habeas/S/thom1 196.fr 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23