727 F.3d 940 (9th Cir. 2013), 12-57162, Griffin v. Harrington

Docket Nº:12-57162
Citation:727 F.3d 940
Opinion Judge:TROTT, Circuit Judge:
Party Name:PRENTISS GRIFFIN, Petitioner-Appellee, v. KELLY HARRINGTON, Warden, Respondent-Appellant
Attorney:Shira B. Seigle (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Jason C. Tran, Deputy Attorney General, Los Angeles, California, for Respondent-Appellant. ...
Judge Panel:Before: Stephen S. Trott, Carlos F. Lucero,[*] and William A. Fletcher, Circuit Judges. Opinion by Judge Trott.
Case Date:August 16, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 940

727 F.3d 940 (9th Cir. 2013)

PRENTISS GRIFFIN, Petitioner-Appellee,

v.

KELLY HARRINGTON, Warden, Respondent-Appellant

No. 12-57162

United States Court of Appeals, Ninth Circuit

August 16, 2013

Argued and Submitted, Pasadena, California June 6, 2013.

Page 941

Appeal from the United States District Court for the Central District of California. D.C. No. 2:10-cv-08753-VBF-SP. Valerie Baker Fairbank, District Judge, Presiding.

AFFIRMED.

Shira B. Seigle (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Jason C. Tran, Deputy Attorney General, Los Angeles, California, for Respondent-Appellant.

Marilee Marshall (argued), Marilee Marshall & Associates, Los Angeles, California, for Petitioner-Appellee.

Before: Stephen S. Trott, Carlos F. Lucero,[*] and William A. Fletcher, Circuit Judges. Opinion by Judge Trott.

SUMMARY[**]

Habeas Corpus

The panel affirmed the district court's grant of a 28 U.S.C. § 2254 habeas corpus petition challenging a murder conviction based on ineffective assistance of counsel.

Although trial counsel knew that the only witness who would identify petitioner as the shooter had decided to change his testimony, counsel did not object when the witness took the stand and answered questions on direct and cross examination, all without taking an oath. Determining that counsel's failure to object constituted a waiver, the trial court denied a subsequent objection to introduction of the witness' taped, inculpatory statement to the police. The panel held that the California Court of Appeal's conclusion, that counsel's failure to make a timely objection was tactical and not error, was objectively unreasonable and unsupported by the factual record.

OPINION

Page 942

TROTT, Circuit Judge:

Petitioner Prentiss Griffin, a member of the Grape Street Crips gang, was convicted by jury in the Superior Court of Los Angeles County of the first degree murder of Dwin Brooks, a member of a rival gang, the Bounty Hunter Bloods. The jury acquitted him of shooting Waylon Walton, who was shot but not killed during the same encounter. His sentence was 90 years to life. On direct appeal, the California Court of Appeal affirmed his conviction, reduced his sentence to 80 years to life, and subsequently denied his petition for a writ of habeas corpus. The California Supreme Court denied review.

Griffin then filed a petition for a writ of habeas corpus in the Central District of California pursuant to 28 U.S.C. § 2254. The district court granted the petition, concluding that Griffin had been the victim of ineffective assistance of trial counsel as guaranteed by the Sixth Amendment; and that California's Court of Appeal's application of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard was unreasonable. 28 U.S.C. § 2254(d)(1). The district court further concluded that the Court of Appeal's factual findings in support of its decision were unreasonable under § 2254(d)(2). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, and we affirm.

I

FACTS AND CIRCUMSTANCES

On March 5, 2005, someone shot and killed Dwin Brooks during a confrontation in Los Angeles, California, involving rival street gangs during which at least forty bullets were fired from four different firearms. Some nine months later, Fred Wilberger, then a federal prisoner, told a Los Angeles police detective that the shooter was Prentiss Griffin. The detective recorded Wilberger's statement. Largely on the basis of that statement, Griffin was arrested and charged with Brooks's murder. Wilberger was the only person who claimed to be able to identify Griffin as the person who shot Brooks.

By the time of Griffin's trial, however, Wilberger had decided to change his story. Before the prosecution called him as a witness, Griffin's attorney, Simon Aval, was aware of Wilberger's about-face. Aval also knew that given Wilberger's decision to repudiate his prior inculpatory statement, the jury would most likely hear the recording of it for the truth of the matter asserted pursuant to Cal. Evid. Code § § 770, 785, and 1235.

As predicted, the trouble began the moment Wilberger took the stand. Here, we borrow from Magistrate Judge Pym's thorough Report and Recommendation to the district court.

The clerk told Wilberger to raise his right hand and read him the oath. Silence apparently followed because the clerk then said, " I need a response, an answer." Wilberger said, " No." The trial judge thereafter removed the jury from the courtroom and addressed the witness. The following dialogue ensued:

Trial Judge: You have been told to swear to tell the truth. Do you understand that? Page 943

Wilberger: Yes, Ma'am.

Trial Judge: How old are you? Wilberger: 24. Trial Judge: So you're old enough to know what the truth is, right? Wilberger: Yes, Ma'am. Trial Judge: All right. We're going to proceed with your testimony. Do you understand that? Wilberger: Yes, Ma'am. The trial judge then instructed the prosecutor to take Wilberger as a hostile witness and proceed with questioning. Direct examination commenced. Petitioner's trial counsel did not object prior to the direct examination of Wilberger. On direct examination by the prosecutor, Wilberger answered every question, but denied all knowledge of petitioner and the shooting, and also denied having ever identified petitioner to the police. Petitioner's counsel cross-examined Wilberger with just two questions: had he ever seen petitioner before, and had he seen petitioner on March 5, 2005. Wilberger answered " No" to both questions and was excused as a witness. The following morning before the jury was brought out, the trial court discussed with counsel the recording of the conversation between Wilberger and Detective Weber, the police detective who conducted the interview where Wilberger identified petitioner as the shooter, ordering that a portion of it be deleted. The prosecutor said she planned on playing the tape by recalling Detective Weber the following morning, since she needed time to edit the tape and Detective Weber was already ready to take the stand that morning. The examination of Detective Weber commenced. Without explanation for the change in schedule, the prosecutor asked the detective about his interview with Wilberger to begin laying the foundation to introduce the tape. Cal. Evid. Code[] § 1235. At this point, petitioner's counsel asked to go on record at sidebar. Petitioner's counsel said, " I just want to object for the record for the tape coming in because Mr. Wilberger didn't give us any sworn testimony yesterday." The prosecutor was...

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