Elliott Rogers v. Mark Shepherd

FILED
NOT FOR PUBLICATION JUN 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELLIOT LAMONT ROGERS, No. 09-16759
Petitioner - Appellant, D.C. No. 2:05-cv-01395-DAD
v.
MEMORANDUM*
MARK SHEPHERD,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, Magistrate Judge, Presiding
Submitted February 14, 2011 **
San Francisco, California
Before: SCHROEDER, THOMAS, Circuit Judges, and BENNETT, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See FED. R. APP. P. 34(a)(2).
***
The Honorable Mark W. Bennett, District Judge for the Northern
District of Iowa, sitting by designation.
Petitioner-appellant Elliot Lamont Rogers appeals the district court’s denial
of his 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his
California state court conviction for second degree robbery with use of a firearm
and being a felon in possession of a firearm for which he was sentenced to a prison
term of 64 years to life. We have jurisdiction pursuant to 28 U.S.C. § 2253 and
review the district court’s denial of the petition de novo. Pinholster v. Ayers, 590
F.3d 651, 662 (9th Cir. 2009).
Rogers’s claims are the following: (1) his initial trial counsel rendered
ineffective assistance by failing to call two witnesses at an evidentiary hearing on
his motion to suppress; (2) his replacement trial counsel provided ineffective
assistance by failing to renew Rogers’s motion to dismiss at the close of trial; (3)
his appellate counsel rendered ineffective assistance by failing to raise on direct
appeal the ineffectiveness of Rogers’s trial counsel; and (4) a comment by the
prosecutor during closing arguments constituted prosecutorial misconduct. We
affirm.
1. We will grant a § 2254 petition only if the state court decision “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States” or “was based on
an unreasonable determination of the facts in light of the evidence presented in the
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State court proceeding.” 28 U.S.C. § 2254(d); see Byrd v. Lewis, 566 F.3d 855,
859 (9th Cir. 2009). The pertinent state court “decision” does not require a
statement of reasons, an opinion, or a citation of Supreme Court cases. Harrington
v. Richter, 131 S. Ct. 770, 784-85 (2011). Where, as here, the state court’s
decision is “unaccompanied by an explanation,” Rogers must still meet his burden
“by showing there was no reasonable basis for the state court to deny relief.” Id. at
784. “This is so whether or not the state court reveals which of the elements in a
multipart claim it found insufficient, for § 2254(d) applies when a ‘claim,’ not a
component of one, has been adjudicated.” Id. Because Rogers asserts claims of
ineffective assistance of counsel under the Sixth Amendment, “the relevant clearly
established law derives from” Strickland v. Washington, 466 U.S. 668 (1984).
Premo v. Moore, 131 S. Ct. 733, 737-38 (2011). Strickland requires proof of both
deficient performance by counsel and prejudice to the petitioner. Id. at 739.
However, on § 2254 review, “[t]he pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from
asking whether defense counsel’s performance fell below Strickland’s standard.”
Richter, 131 S. Ct. at 785. Where the federal court’s review requires that the
standards of Strickland and § 2254(d) be applied “in tandem,” its review must be
“doubly” deferential. Id. at 788.
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2. Rogers argues that his initial trial counsel was ineffective in failing to
call two witnesses to testify at an evidentiary hearing on a motion to suppress
evidence seized during a warrantless search of his wife’s apartment. The fighting
issue at the suppression hearing was whether Rogers resided at the apartment. This
is because no warrant was required, due to Rogers’s parolee status, if the police
had probable cause to believe Rogers was a resident of the apartment. Motley v.
Parks, 432 F.3d 1072, 1080 (9th Cir. 2005) (en banc) (“[B]efore conducting a
warrantless search pursuant to a parolee’s parole condition, law enforcement
officers must have probable cause to believe that the parolee is a resident of the
house to be searched.”). Rogers contends that, had his counsel called two
witnesses, his wife and the apartment manager, it is more probable than not that the
search could not have been justified as a parole search and the trial court would
have granted his motion to suppress evidence seized from the apartment. Rogers
further argues that if the trial court had granted the motion to suppress, a
reasonable probability exists that the outcome of the trial would have been
different. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (“Where defense
counsel’s failure to litigate a Fourth Amendment claim competently is the principal
allegation of ineffectiveness, the defendant must also prove that his Fourth
Amendment claim is meritorious and that there is a reasonable probability that the
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verdict would have been different absent the excludable evidence in order to
demonstrate actual prejudice.”).
The California Supreme Court was not objectively unreasonable in rejecting
Rogers’s claim of ineffective assistance against his initial trial counsel for failure to
call the two witnesses at his suppression hearing. The state postconviction court
reasonably could have determined that Rogers’s initial trial counsel’s performance
was not deficient in deciding against calling either witness to testify at the
suppression hearing. Rogers’s initial trial counsel made the decision to not call
Rogers’s wife and instead to call Rogers’s ex-wife. Rogers’s ex-wife testified that
Rogers was staying with her at her apartment “full time” because “he didn’t have a
place to stay.” Rogers’s ex-wife also testified that she had given him
approximately $2,000 to purchase an automobile shortly before the date of the
robbery. Rogers’s initial trial counsel made his election to call Rogers’s ex-wife
and not call Rogers’s wife after having spoken to Rogers’s wife and with full
knowledge of her anticipated testimony. Thus, Rogers’s initial trial counsel had
investigated the possibility of calling Rogers’s wife to testify but apparently made
a tactical decision not to do so, because he apparently believed she would not have
provided credible or consistent testimony, and instead chose to rely on the ex-
wife’s testimony. Such a decision is “virtually unchallengeable.” Wiggins v.
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Smith, 539 U.S. 510, 521 (2003). Initial trial counsel’s decision not to call
Rogers’s wife did not fall outside the wide range of reasonable professional
conduct. Because both women would have testified to having given Rogers
approximately $2,000 shortly before the robbery, counsel could rightly have been
concerned that, were both women to testify at the suppression hearing, their
testimony may have been viewed as fabricated or collusive. Moreover, Rogers’s
wife would have been subject to cross-examination regarding why, when initially
contacted by law enforcement personnel, she readily admitted that Rogers was her
husband but did not tell the contacting police officer that Rogers did not live with
her at the apartment. She also would have been subject to questioning about a
statement she made to a law enforcement officer on the day of the search that
Rogers had been at her apartment with her children when she left for work that
morning. In addition, Rogers’s wife would have been open to questioning about
why Rogers, if he was not a resident of the apartment, was listed on her rental
application as one of its “proposed occupants.”
Similarly, Rogers’s initial trial counsel’s decision not to call the apartment
manager to testify at the suppression hearing was an apparent tactical decision
which did not fall outside the wide range of reasonable professional conduct.
Although the apartment manager would have testified that Rogers was not named
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in the apartment’s rental agreement as an occupant, she also would have testified
that Rogers was listed as a proposed resident on the apartment’s rental application
and that she believed that Rogers was living with his wife in the apartment based
on her contacts with Rogers’s wife and telephone calls to the apartment.
Because we determine that Rogers’s initial trial counsel’s performance was
not deficient, we do not reach Strickland’s prejudice prong. See, e.g., Butcher v.
Marquez, 758 F.2d 373, 377 (9th Cir. 1985).
3. Given that Rogers’s claim of ineffective assistance of his initial trial
counsel lacks merit, his replacement trial counsel and appellate counsel exercised
reasonable judgment in declining to raise that claim as a basis for a renewed
motion to dismiss or as an issue on direct appeal.
4. We affirm the district court’s denial of Rogers’s request for an
evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2). As discussed, Rogers has
not “‘alleged facts that, if proven, would entitle him to habeas relief.’” Earp v.
Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005) (quoting Williams v. Woodford, 384
F.3d 567, 586 (9th Cir. 2004)).
5. Rogers also argues that a single comment by the prosecutor during
closing arguments constituted prosecutorial misconduct in violation of due process.
“[T]he touchstone of due process analysis in cases of alleged prosecutorial
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misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith
v. Phillips, 455 U.S. 209, 219 (1982). The conduct must be examined to determine
“whether, considered in the context of the entire trial, that conduct appears likely to
have affected the jury’s discharge of its duty to judge the evidence fairly.” United
States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990). Here, the prosecutor made a
single comment. He commented on his belief that, “I think the person who
committed this robbery and I know the person who committed this robbers [sic] is
sitting in the courtroom today.” Defense counsel immediately objected to the
comment and the trial court admonished the prosecutor to avoid such personal
opinion commentaries. The prosecutor offered no further personal opinions about
Rogers’s guilt.
We acknowledge that the prosecutor’s comment during closing arguments
constituted prosecutorial misconduct. See United States v. Wright, 625 F.3d 583,
610 (9th Cir. 2010). However, on a petition for a writ of habeas corpus, the
standard of review for a claim of prosecutorial misconduct is “‘the narrow one of
due process, and not the broad exercise of supervisory power.’” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 642 (1974)). “The relevant question is whether the prosecutor[’s]
comments ‘so infected the trial with unfairness as to make the resulting conviction
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a denial of due process.’” Id. (quoting Donnelly, 416 U.S. at 643). We must defer
to the California courts’ conclusion that the prosecutor’s single act of misconduct
here did not so taint the trial as to violate due process, unless that conclusion was
either contrary to or an objectively unreasonable application of clearly established
federal law. We conclude it was neither. The prosecutor’s improper comment here
was an isolated incident in a lengthy trial and was immediately addressed by the
trial court. Thus, the prosecutor’s misconduct did not permeate the trial. In light
of the evidence of Rogers’s guilt, we conclude that the prosecutor’s improper
remark did not have a “substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation
omitted); see United States v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005)
(holding prosecutor’s single improper closing comment stating the government’s
belief that defendant committed the crime was harmless given the prosecutor’s
immediate rephrasing of statement upon defendant’s objection and when viewed in
the context of the trial as a whole); Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir.
1995) (holding petitioner not entitled to habeas relief based on prosecutor’s single
improper comment).
AFFIRMED.
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