Luna v. Cambra

• Decision Date: 27 September 2002
• Docket Number: No. 01-55841.,01-55841.
• Citation: 306 F.3d 954
• Parties: William V. LUNA, Petitioner-Appellant, v. Steven CAMBRA, Jr., Warden; Daniel E. Lungren, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

306 F.3d 954

William V. LUNA, Petitioner-Appellant, v. Steven CAMBRA, Jr., Warden; Daniel E. Lungren, Attorney General, Respondents-Appellees.

No. 01-55841.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2002.

Filed September 27, 2002.

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Craig Wilke, Office of the Federal Public Defender, Los Angeles, CA, for the petitioner-appellant.

Chung L. Mar, State of California Attorney General's Office, Los Angeles, CA, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California; William J. Rea, District Judge, Presiding. D.C. No. CV-97-02655-WJR(EE).

Before FERGUSON, TASHIMA, and GRABER, Circuit Judges.

OPINION

FERGUSON, Circuit Judge.

Petitioner William Luna ("Luna") appeals the District Court's denial of his petition for a writ of habeas corpus alleging ineffective assistance of counsel at his state trial for attempted murder, assault with a deadly weapon, and robbery. The District Court found that trial counsel's performance was deficient due to his failure to interview and subpoena two alibi witnesses and one exonerating witness, but concluded that his error was not prejudicial. We reverse and remand.

I.

A. Factual Background and Procedural History

At approximately 3 a.m., May 13, 1988, Estaban Leal ("Leal") was robbed while walking through Mountain View Park in El Monte, California. He was approached by two men, one of whom demanded his money and the other hit him in the face. Leal fell to the ground and was stabbed eleven times in the back. After regaining consciousness, he discovered that his watch, wallet, and cash were missing.

Leal was admitted to the intensive care unit ("ICU") at the hospital. Late that afternoon, two detectives contacted him there and showed him two folders, each containing six photographs of possible suspects. Leal identified the photographs of Luna and co-defendant Carlos Arcinega ("Arcinega") as the two men who had robbed and stabbed him. Luna was arrested at home two days later. Luna and Arcinega were charged with attempted murder, assault with a deadly weapon, and robbery. At trial, the prosecution presented the testimony of Leal, who identified Luna as the man who had stabbed him. On cross-examination by Arcinega's counsel, Leal admitted that he had consumed five beers in the hours preceding the attack, he was not wearing his prescription eye glasses, and the lighting was poor in the park due to a burnt-out light. The investigating detectives testified regarding Leal's description of his assailants, his identification of Luna and Arcinega while in the ICU, and the lack of physical evidence found at the scene of the crime.

Trial counsel presented Luna's testimony that he was home sleeping at his mother's house at the time of the crime. Luna testified that his family was home with him. While he conceded that the other family members were asleep at 3 a.m., he testified that "it's a little room" and "if somebody were to get up," he or the others would have awoken. Counsel did not offer any other witnesses on Luna's behalf. Luna was convicted of attempted murder, assault, and robbery. He was sentenced to life imprisonment with possibility of parole. His conviction and sentence were affirmed on direct appeal.

In 1994, Luna filed a habeas corpus petition in the California Court of Appeal. Both the Court of Appeal and the California Supreme Court denied his petition. In 1997, Luna filed a writ of habeas corpus pro se in the District Court, alleging, inter alia, that his trial counsel was constitutionally ineffective for failing to interview or subpoena two alibi witnesses (Gloria Luna and Jennie Luna) and two exonerating witnesses (Richard Lopez and Ronny Valencia).¹ After a three-day evidentiary hearing held in February 2000, Magistrate Judge Elgin Edwards recommended the denial of Luna's habeas petition. The District Court adopted the Magistrate Judge's recommendations and denied the petition with prejudice.

B. The Evidentiary Hearing

The Magistrate Judge held an evidentiary hearing to determine two issues: (1) whether trial counsel had interviewed the witnesses whom Luna suggested as having corroborating and exculpatory information, and (2) what those witnesses would have said if interviewed by counsel and called to testify at trial. An eight-member advisory jury was empaneled to assess the credibility of the witnesses and of trial counsel. The jury heard the testimony of Luna, Jennie Luna (Luna's sister), and Gloria Luna (Luna's mother). Luna introduced at the evidentiary hearing a declaration by Richard Lopez confessing to the crime. However, Lopez was not permitted to testify before the advisory jury because of his invocation of the Fifth Amendment privilege against self-incrimination.

1. Alibi Witnesses

Both Jennie and Gloria Luna testified that Luna was home at the time of the crime. They lived with Luna and six other family members in a small, one-bedroom house. Jennie recalled that she had observed Luna coming home that evening, sleeping that night, and preparing to go to school the next morning. Gloria also testified that he had not left the house after he came home earlier that evening. She specifically remembered that he had woken up early the next morning for school. Both testified that, due to their living arrangements, they would have been awakened by Luna's movements if he had come or gone in the middle of the night.

Both Jennie and Gloria were willing and available to testify at trial. Yet, neither was contacted by Luna's counsel. Jennie had expected to testify and even went to the courthouse during trial with the hope of speaking to Luna's counsel. Gloria was also willing to testify at trial, but trial counsel did not contact her.

2. Exonerating Witness

Richard Lopez testified, outside the presence of the jury, that he witnessed an attack, robbery, and stabbing of a man in Mountain View Park at 3 a.m. on May 13, 1988. He testified that a wallet and a six-pack of beer were taken from the victim. Lopez also testified that Luna was not there. Lopez stated that he was willing and available to testify to these facts at Luna's trial,² but no one had contacted him. However, on cross-examination, Lopez invoked his Fifth Amendment privilege against self-incrimination with respect to the State's questions about his personal participation in the crime. On redirect, habeas counsel questioned Lopez regarding confessions allegedly made to him and an investigator with his office. Again, Lopez invoked the Fifth.

Due to Lopez' invocation of the Fifth Amendment, his testimony was not permitted. Luna's request to present evidence of Lopez' out-of-court statements was also denied. The Magistrate Judge ruled that Lopez' declaration, which confessed his guilt to the crime, was not admissible as a statement against penal interest because it was "utterly unreliable" in light of Lopez' invocation of the Fifth Amendment. Evidence of Lopez' prior statements to habeas counsel and his investigator were similarly disallowed on the basis that this evidence was not presented in the state court below and thus there was no exhaustion in state court.

3. Findings of the Advisory Jury and Magistrate Judge

At the close of the evidentiary hearing, the jury submitted its answers to written interrogatories. It found that Luna had informed trial counsel about Jennie and Gloria Luna's ability to corroborate his alibi, that counsel had failed to contact them, and that they would have testified at trial as to Luna's whereabouts at the time of the crime. The advisory jury also found that Luna had urged trial counsel to contact Lopez because he could testify that Luna did not commit the crime and had information regarding the person who did, but counsel failed to contact him.

The Magistrate Judge adopted the jury's findings and concluded that the facts supported Luna's claim of deficient representation. However, he found that Luna was not prejudiced by trial counsel's errors because the testimony of Jennie and Gloria Luna was indefinite as to time and biased due to their familial relationship with Luna. Further, he concluded that "there is reason to doubt" whether Lopez would have been permitted to testify due to his invocation of his Fifth Amendment privilege. These findings were adopted by the District Court which denied Luna's habeas petition. Luna timely appealed to this court.

II.

We review de novo the District Court's denial of habeas corpus relief. Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001). We review for clear error any findings of fact relevant to the District Court's denial. Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1313, 152 L.Ed.2d 222 (2002).

Because Luna filed this petition in the District Court on April 17, 1997, his petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, we may grant a petition for a writ of habeas corpus only if the "adjudication of the claim 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." 28 U.S.C. § 2254(d)(1).

A state court decision is "`contrary to'" federal law if the court either "`applies a rule that contradicts the governing law set forth'" by the Supreme Court or arrives at a different result in a case, that is "`materially indistinguishable from a [Supreme Court] decision.'" Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (quoting Williams v. Taylor, 529 U.S. 362, 404-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). A state court decision is an "`unreasonable application of'" the Supreme Court's precedent if the court "`correctly identifies the governing...