Morris v. State of Cal.

• Decision Date: 10 March 1992
• Docket Number: No. 90-56095,90-56095
• Citation: 966 F.2d 448
• Parties: Karen Sue MORRIS, Petitioner-Appellant, v. STATE OF CALIFORNIA; Ventura County Municipal Court; Attorney General of the State of California, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 448

966 F.2d 448

Karen Sue MORRIS, Petitioner-Appellant, v. STATE OF CALIFORNIA; Ventura County Municipal Court Attorney General of the State of California Respondents-Appellees.

No. 90-56095.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 1, 1991.

Decided Sept. 30, 1991.

As Amended on Denial of Rehearing

and Rehearing En Banc

March 10, 1992.

Scott Howard Siegel, Office of General Counsel, Sec. Pacific Nat. Bank, Los Angeles, Cal., for petitioner-appellant.

Michael D. Bradbury, Dist. Atty., County of Ventura, Michael D. Schwartz, Deputy Dist. Atty., Ventura, Cal., for respondents-appellees.

Appeal from the United States District Court for the Central District of California.

Before: CHAMBERS, Senior Circuit Judge, SCHROEDER and REINHARDT, Circuit Judges.

ORDER

The panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. The full court has been advised of the suggestion for rehearing en banc, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35.

Appellees' petition for rehearing is denied and the suggestion for rehearing en banc is rejected. The third paragraph of Part II of the opinion filed September 30, 1991, 945 F.2d 1456, 1460 (9th Cir.1991), is deleted and the following is substituted in its place:

OPINION

REINHARDT, Circuit Judge:

Appellant Karen Sue Morris appeals the district court's denial of her petition for a writ of habeas corpus. In September 1985, Ms. Morris was convicted by a Ventura County Municipal Court jury on one count of being under the influence of cocaine in violation of California Health & Safety Code § 11550(a). She challenges this conviction on the ground that she received ineffective assistance of counsel. The district court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2253. We reverse and remand to the district court for further proceedings consistent with this opinion, although we affirm certain of the findings and conclusions below.

I. FACTS

At 2:00 a.m. on April 14, 1985, Karen Sue Morris and her husband James were driving on one of Southern California's many freeways when their car malfunctioned. Mr. Morris drove off the freeway and turned into a closed gas station to use a pay phone to summon help. Deputy De Los Santos of the Ventura County Sheriff's Department was sitting in a patrol car nearby. While Mr. Morris was using the telephone, Ms. Morris walked over to Deputy De Los Santos to find out where they were. In the course of his conversation with her, Deputy De Los Santos, who was a former narcotics investigator, began to suspect that Ms. Morris was under the influence of cocaine.

Deputy De Los Santos asked Ms. Morris a number of questions, took her pulse rate, and measured her pupil size. Ms. Morris's pulse rate was rapid, she spoke nervously and quickly, and her pupils were "extremely" dilated and did not constrict when Deputy De Los Santos flashed light on them with a medical penlight. Deputy De Los Santos also examined Ms. Morris's nostrils; one was clear but the other was "extremely" irritated and inflamed. He found no cocaine residue in her nostrils, nor did he find cocaine or cocaine paraphernalia on her person or in her car.

Based on his belief that Ms. Morris was under the influence of cocaine, Deputy De Los Santos arrested her and brought her to the sheriff's substation. There, she refused to provide a urine sample for chemical analysis. Deputy De Los Santos then repeated his check of her symptoms. Her pulse rate remained high, her pupils remained dilated, and at one point he noted that her respiration was rapid. Deputy De Los Santos later testified that there was no doubt in his mind that Ms. Morris was under the influence of cocaine.

Ms. Morris was charged by way of Municipal Court complaint with a single count of being under the influence of cocaine in violation of California Health & Safety Code § 11550(a). She was convicted by a jury and sentenced to 90 days in the County Jail and 36 months summary probation. Her sentence was suspended pending her appeal.

After she exhausted her state remedies, Ms. Morris filed the instant petition for a writ of habeas corpus. She asserted that her conviction was unconstitutional because she was the victim of ineffective assistance of counsel. She argued that her trial counsel was ineffective in three ways.

First, Ms. Morris asserted that her attorney failed to recognize and advise her of a crucial defense--that she was under the influence of methamphetamine and not cocaine at the time of her arrest. Ms. Morris alleged that she informed her trial counsel that she had ingested methamphetamine--and not cocaine--before her arrest. She further alleged that her trial counsel told her that being under the influence of methamphetamine was "just as bad as" being under the influence of cocaine, and that because it was incriminating, he advised her not to admit to methamphetamine use when offering her defense to the charge of cocaine use. In fact, at the time Ms. Morris was arrested and charged, being under the influence of methamphetamine was not illegal in California. Ms. Morris argues that at the very least her counsel had the obligation to research the question before giving her such critically important erroneous legal advice.

Second, Ms. Morris alleged that her trial counsel had a conflict of interest due to his concurrent representation of her husband in an unrelated criminal case involving narcotics. She argued that counsel's failure to call Mr. Morris to the stand to testify on her behalf was a product of this conflict and that she was prejudiced by her husband's failure to testify.

Finally, Ms. Morris alleged that her attorney provided ineffective assistance by failing to object to questions at trial regarding her prior cocaine use. His failure to object, she argued, resulted in the admission of inadmissible character evidence against her.

The U.S. Magistrate assigned to her case recommended that the district court reject Ms. Morris's first two arguments but grant a writ of habeas corpus based on the failure of her attorney to object to the admission of evidence of bad character. The district court agreed with the Magistrate that Ms. Morris's first two arguments should be rejected, but disagreed that trial counsel's failure to object to the admission of evidence constituted ineffective assistance. Accordingly, the district court denied the writ. Ms. Morris appeals.

II. DISCUSSION

A. Methamphetamine Defense.

Ms. Morris argues that her trial counsel was ineffective in failing to recognize the legality of her alleged use of methamphetamine prior to her arrest, and in advising her not to disclose the methamphetamine use in connection with her defense to the charge of cocaine use. At the least, she says, her counsel should have researched the question before effectively depriving her of her defense to the charge of which she was convicted. The district court rejected this argument on the ground of judicial estoppel. It based its ruling on Ms. Morris's testimony at trial that she had taken only three prescription drugs--Tylenol with codeine, Fiorinal, ¹ and penicillin. The trial transcript reflects the following colloquy:

Prosecutor: Then what you're saying is these symptoms [observed by Deputy De Los Santos] aren't due to amphetamines or some other drug you may have been taking that night? [Defense counsel's objection was overruled and Ms. Morris answered].

Ms. Morris: I feel that my high pulse rate was attributed to being on the freeway and being scared to death and then being treated so unprofessionally by Deputy De Los Santos.

P: Had you been drinking alcohol that night?

M: No, I had not.

P: Had you been smoking marijuana that night?

M: No, I had not.

P: Had you been taking anything other than the medication that you've described already?

M: All I had taken were the three prescriptions.

P: Okay. Tylenol with codeine, penicillin and the what?

M: Fiorinal.

P: Fiorinal. And that's it?

M: That's correct.

Ms. Morris now states that she perjured herself at trial. The district court ruled that the doctrine of judicial estoppel precludes her from subsequently changing her story.

As a general principle, the doctrine of judicial estoppel bars a party from taking inconsistent positions in the same litigation. See Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 716 (9th Cir.1990); Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2915, 115 L.Ed.2d 1078 (1991); In re Corey, 892 F.2d 829, 836 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 56, 112 L.Ed.2d 31 (1990); Stevens Tech. Servs. v. SS Brooklyn, 885 F.2d 584, 588 (9th Cir.1989). Although this circuit has adopted the doctrine of judicial estoppel, we have not yet determined the circumstances under which it will be applied. See Milgard Tempering, Inc., 902 F.2d at 716; Stevens Tech. Servs., Inc., 885 F.2d at 589. The majority of circuits recognizing the doctrine hold that it is inapplicable unless the inconsistent statement was actually adopted by the court in the earlier litigation; only in that situation, according to those circuits, is there a risk of inconsistent results and a threat to the integrity of the judicial process. See Milgard Tempering, Inc., 902 F.2d at 716 (citing Allen v. Zurich Ins. Co., 667 F.2d 1162, 1167 (4th Cir.1981); Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 (6th Cir.1982); United States v. 49.01 Acres of Land, 802 F.2d 387, 390 (10th Cir.1986); Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C.Cir.1980); Scarano v. Central R. Co., 203 F.2d 510, 513 (3d Cir.1953)); Stevens Tech. Servs., Inc., 885 F.2d at 588-89. The minority view, in contrast, holds that the doctrine applies even if the litigant was unsuccessful in asserting the inconsistent position, if by his change of...