Wilson v. Henry

• Citation: 185 F.3d 986
• Decision Date: 28 July 1999
• Docket Number: No. 98-16301,98-16301
• Parties: (9th Cir. 1999) JACKIE G. WILSON, Petitioner-Appellant, v. I.C. HAUNANI HENRY, Warden, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 986

185 F.3d 986 (9th Cir. 1999)

JACKIE G. WILSON, Petitioner-Appellant, v. I.C. HAUNANI HENRY, Warden, Respondent-Appellee.

No. 98-16301

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 15, 1999

Decided July 28, 1999

Nedra Ruiz, Serra, Lichter, Daar, Bustamante & Michael, San Francisco, California, for the petitioner-appellant.

Matthew P. Boyle, Deputy Attorney General, San Francisco, California, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding. D.C. No. CV-97-03585-CRB.

Before: Thomas G. Nelson, Michael Daly Hawkins, and Susan P. Graber, Circuit Judges.

OPINION

MICHAEL HAWKINS, Circuit Judge:

Jackie G. Wilson ("Wilson"), a California prisoner convicted of first-degree murder, attempted murder, and assault with a deadly weapon, appeals from the district court's denial of his 28 U.S.C. S 2254 petition for a writ of habeas corpus. We affirm the district court's denial of the writ.

Wilson, also known as "Jack Frost," shot and killed Michael "Green-Eyes" Henry ("Henry") and attempted to shoot Mario "BeBop" Baines ("Baines") early one Thanksgiving morning near the intersection of Fitzgerald and Jennings Streets in a San Francisco neighborhood, known as "Double Rock," which is notorious for drug use. Wilson supported his "imperfect self-defense" defense, and the prosecution its theory that Wilson had been seeking revenge on Baines, with evidence that he had been beaten the previous day by Baines and Fred Tobie ("Tobie").

Wilson raises six claims of ineffective assistance by trial counsel La Rue Grim ("Grim"), who had represented him in previous matters. According to Wilson, Grim met with him for about an hour before trial and spoke with him for fifteen minutes each day of trial. Grim informed Wilson that he would be asked about his prior convictions, but did not review them with him. While in jail awaiting trial, Wilson told Grim that Jacqueline James ("James") had seen Henry in her home near the site of the shooting immediately before the shooting, with a shotgun under his coat. Grim did not call James as a witness and, following trial, did not move for a new trial based on James' written declaration.

STANDARD OF REVIEW

Because Wilson's petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the AEDPA's provisions apply. See Jeffries v. Wood, 103 F.3d 827 (9th Cir. 1996) (en banc). Pre-AEDPA, a claim of ineffective assistance of counsel was a mixed question of law and fact, which we reviewed de novo. See Johnson v. Baldwin, 114 F.3d 835, 838 (9th Cir. 1997). Under the AEDPA, habeas relief can be granted only when the state court adjudication of the merits of a claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. S 2254(d).

In dictum, this court has noted that mixed questions of law and fact fall under the "unreasonable application " test of the first section of the statute. See Moore v. Calderon, 108 F.3d 261, 265 n.3 (9th Cir. 1997). This court has not yet set out a clear delineation of how to conduct S 2254(d) review. See Davis v. Kramer, 167 F.3d 494, 500 (9th Cir. 1999). We have stated that the "unreasonable application" and "contrary to" tests "reflect the same general requirement that federal courts not disturb state court determinations unless the state court has failed to follow the law as explicated by the Supreme Court." Id. We need not resolve the issue to decide this case, however.

ANALYSIS

The Strickland v. Washington , 466 U.S. 668 (1984), framework for analyzing ineffective assistance of counsel claims is considered in this circuit to be "clearly established Federal law, as determined by the Supreme Court of the United States" for the purposes of 28 U.S.C.S 2254(d) analysis. Canales v. Roe, 151 F.3d 1226, 1229 n.2 (9th Cir. 1998). Under Strickland, we evaluate (1) whether counsel's conduct, seen objectively, was out of "the wide range of professionally competent assistance" and, if so, (2) whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 691, 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. We must strongly presume that counsel's conduct falls within a wide range of reasonable professional assistance, see id. at 689, but need not decide whether counsel's performance was deficient before determining whether any prejudice was suffered by the defendant because of the alleged errors. See id. at 697.

A Strickland analysis focuses not only on "outcome determination," but also on "whether the result of the proceeding was fundamentally unfair or unreliable." Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id. at 372.

A. Failure to investigate.

Strickland states that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," 466 U.S. at 691, but that reasonableness is "substantially influenced" by the defendant's statements and actions. "[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Id.

Wilson argues that his trial counsel's apparent failure to investigate the circumstances of the shooting was not a reasonable tactical evaluation, but an absolute failure to provide a defense. Wilson points in particular to the James statement which, he contends, shows that counsel could have obtained and used eyewitness testimony to strengthen his defense, and to counsel's failure to investigate the size of the local storm drains to corroborate his testimony that he had disposed of his gun in one.

In Johnson v. Baldwin, 114 F.3d 835 (9th Cir. 1997), counsel's failure to do even "minimal investigation " -failing to interview alibi witnesses, inquire into corroboration, or investigate corroboration -did create prejudice under Strickland. In Johnson, however, the state's case was so weak that even minimal investigation could have led to a trial strategy that would have prevented the jury from deciding to convict. See id. at 840.

Assuming that trial counsel's apparent failure to conduct any investigation into witnesses or corroborating evidence here was a breach of his duties, it does not appear that the prejudice prong of the Strickland analysis is met. Unlike in Johnson, the state's case against Wilson was strong. Wilson admitted to the shooting. No person on the street, including Wilson, testified that Henry had a weapon, nor did Wilson state that he knew Henry habitually carried a weapon or had other reason to fear him at the time of the shooting. All of this undermined Wilson's self-defense claims.

James would have contributed little but confusion to Wilson's defense. She not only places events two hours earlier than all other witnesses, she also claims that she saw the shooting take place immediately after Henry left her home, a block away. This contradicts the testimony by Baines and Ronald Ferguson that Henry had been in their company, smoking crack, until the three of them left the alley to speak to Wilson. James also says she heard four shots; all others testified that there were but two.

The James statement is simply too flawed to establish that a lack of investigation prejudiced Wilson. Wilson testified he saw no weapon, no weapon was found, and there was no testimony that he knew, or even thought, that Henry was usually armed. In light of these other facts, it is unlikely that any amount of investigation would have uncovered anyone who would have corroborated or otherwise supported Wilson's defense.¹ Even if counsel's decision not to undertake minimal investigation was out of "the wide range of professionally competent assistance," no prejudice accrued to Wilson. Strickland, 466 U.S. at 694.

A police inspector testified, contradicting Wilson, that the storm drain openings in the area were too small for Wilson to dispose of the weapon as he testified. Wilson argues that investigation would have shown that the drains were large enough and that his counsel's failure to investigate to corroborate him was prejudicial. However, disposal of the gun, which Wilson admitted using, does not bear on any element of the crimes of which he was convicted. Although Johnson suggests that an attorney has a duty to investigate to enable the client to present a "more convincing defense" when the client's account of facts is unconvincing, see Johnson, 114 F.3d at 835, it does not appear that counsel should have seen Wilson's statement that he threw the gun into a drain as triggering this duty. Although corroborating Wilson's testimony might have been a better choice of tactic, choosing not to investigate the drains' size was not outside the range of reasonable trial decisions. See Strickland, 466 U.S. at 691.²

B. Failure to consult an expert in drug addiction and psychiatric trauma.

Wilson also argues that his trial counsel prejudicially erred by failing to consult a psychiatric expert. Insofar as such an expert would have testified, without examining Wilson, that it would be reasonable to act out of fear in a neighborhood rife with violence-prone crack addicts, such a general opinion is inadmissible...