Bragg v. Galaza
| Decision Date | 12 June 2001 |
| Docket Number | No. 99-16636,99-16636 |
| Citation | 242 F.3d 1082 |
| Parties | (9th Cir. 2001) ANDRE MARCUS BRAGG, Petitioner-Appellant, v. WARDEN GALAZA, Respondent-Appellee |
| Court | U.S. Court of Appeals — Ninth Circuit |
Quin Denvir, Federal Defender; Daniel J. Broderick, Chief Assistant Federal Defender; Carolyn M. Wiggin, Staff Attorney; Allison Claire, Assistant Federal Defender, Sacramento, California, for the petitioner-appellant.
Bill Lockyer, Attorney General of the State of California; David P. Druliner, Chief Assistant Attorney General; Robert R. Anderson, Senior Assistant Attorney General; Arnold O. Overoye, Senior Assistant Attorney General; Mathew Chan, Deputy Attorney General, Sacramento, California, for the respondent-appellee.
Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding. D.C. No.CV-97-00741-LKK
Before: Diarmuid F. O'Scannlain, Edward Leavy, and Ronald M. Gould, Circuit Judges.
Andre Marcus Bragg ("Bragg") petitions for a writ of habeas corpus pursuant to 28 U.S.C. S 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1218 ("AEDPA"). Bragg appeals the district court's order denying his habeas corpus petition, arguing that he received ineffective assistance of counsel during his murder trial in California state court. We affirm and hold that (1) Bragg cannot establish ineffective assistance of counsel on the factually inadequate record before us; and (2) AEDPA does not permit us to remand for an evidentiary hearing because Bragg failed to develop the factual basis for his claim in state court.
On May 5, 1992, in Stockton, California, Rachelle Jones died in her car after being shot by a gunman in a moving car. On June 17, 1992, Bragg, the suspected driver of the moving car, was charged with murder, attempted murder, shooting at an occupied motor vehicle, and being a driver who permitted discharge of a firearm from a vehicle. Bragg's defense was that his car was inoperable and that he was elsewhere on the night of the shooting. Bragg's trial on these charges began on February 16, 1993.
At Bragg's trial, several witnesses testified that the car from which the bullets were fired carried at least one passenger. On the third day of trial the prosecution called Byrron Australia Williams ("Williams"). When Williams began to testify, Bragg's appointed counsel, Patrick Piggott ("Piggott"), alerted the trial judge to a potential conflict of interest. Piggott had just learned that Williams would identify Gary Norwood, Bragg's cousin, as the passenger; however, two days earlier Piggott had agreed to represent Norwood in an unrelated case. The court then held three formal conferences on the record in chambers to assess the conflict of interest issue.
At the first conference, which included the trial judge and Piggott, Piggott explained that Norwood's mother talked to him about Bragg's case during jury selection for Bragg's trial and told Piggott about family relationships "and certain things about May." During that conversation, Norwood's mother asked Piggott if he would represent Norwood in an unrelated case. Piggott also told the court that he met with Norwood about the unrelated case on the first day of Bragg's trial, but that "there was no discussion about May 5th [the day of the shooting]," and that "[a]s far as direct contact about this case and facts of this case, it only has to do with locating witnesses and what they know about the feuds, what they know about Andre's car." Piggott further said that he received no information about Bragg's case from Norwood and that he did not know that Norwood would be involved in Bragg's case until Williams took the stand. Piggott did express concern, however, that if Norwood was identified as a passenger in the car, Piggott ethically could not cross-examine Norwood or witnesses against him because any testimony might prejudice Norwood in the unrelated case. Piggott also expressed concern that he could not argue to Bragg's jury that Norwood was the shooter.
At the second conference, which included the trial judge, Piggott and Bragg, the court discussed the possible conflict with Bragg, and told Bragg that Bragg had to decide whether the inability to explore Norwood's involvement would prejudice his case. The court observed that Williams' testimony identifying the passenger might not be significant because other witnesses had testified that there was a passenger in the car when Rachelle Jones was shot.
At the third conference, which began with the trial judge and Piggott and later included the defense investigator, and later still Bragg, Piggott informed the court that Norwood had just told a defense investigator that he knew "all about" Bragg's case. Piggott told the court that he had not inquired further: "If I have to get out from both sides, I thought I shouldn't ask any more," and that, as far as he knew, Norwood did not tell the investigator any facts about Bragg's case. The court then, with the defense investigator and Bragg also present, ruled that Piggott should withdraw from Norwood's case, and that the record would reflect that none of the facts of Norwood's involvement came directly or indirectly from Norwood or his family to Piggott's investigator. The court declared that "there would be no impediment to [Piggott] gcross-examining any witness about Norwood's involvement in this case."
After the court discussed its resolution of the conflict with Bragg, the trial resumed. In closing argument, Piggott used the fact that Norwood may have been in the car to disparage the government's investigation, but did not suggest that Norwood might have been the shooter.
On February 24, 1993, the jury convicted Bragg of second degree murder pursuant to California Penal Code ("CPC") section 187, attempted murder pursuant to CPC sections 664, shooting at an occupied motor vehicle pursuant to CPC section 246, and permitting the discharge of a firearm from a motor vehicle pursuant to CPC section 12034(B).
The court sentenced Bragg to fifteen years to life in prison for second-degree murder and a consecutive term of seven years in prison for attempted murder. Bragg appealed his convictions to the California Court of Appeal asserting, inter alia, claims of ineffective assistance of counsel. The California Court of Appeal affirmed. Bragg petitioned for review by the California Supreme Court, again asserting, inter alia, ineffective assistance of counsel. The California Supreme Court denied Bragg's petition.
Bragg then petitioned for a writ of habeas corpus from the United States District Court for the Eastern District of California on grounds that he had received ineffective assistance of counsel. Adopting the findings and recommendations of the magistrate judge, the district court denied Bragg's habeas petition. Bragg appeals this order, arguing that he was denied effective assistance of counsel because of (1) Piggott's actual conflict of interest; and (2) Piggott's failure to investigate. We affirm.
Bragg argues that he was denied his Sixth Amendment right to effective assistance of counsel because his trial lawyer had an actual conflict of interest.
In a federal habeas action, we review de novo claims of ineffective assistance of counsel and conflict of interest. Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir. 1994) (citing Strickland v. Washington, 466 U.S. 668, 698 (1984)).
To establish a Sixth Amendment violation based on a conflict of interest Bragg must show (1) that Piggott actively represented conflicting interests; and (2) that this adversely affected Piggott's performance. Mannhalt v. Reed , 847 F.2d 576, 579 (9th Cir. 1988).
Bragg contends that Piggott actively represented conflicting interests while defending him because Piggott never successfully withdrew from his representation of Norwood. 1
Without a showing of prejudice, a "theoretical " or "potential" conflict is insufficient to constitute actual conflict; instead, Piggott must have actively represented conflicting interests. Bonin v. Calderon, 59 F.3d 815, 827 (9th Cir. 1995). Bragg must prove an actual conflict "through a factual showing on the record." Morris v. California, 966 F.2d 448, 455 (9th Cir. 1991).
Bragg presents facts showing that Norwood did not answer the defense investigator's telephone call terminating Piggott's relationship with Norwood because he was away for the day. Piggott's investigator left a message with Norwood's mother stating that Piggott would no longer be representing Norwood. There is no evidence to support Bragg's claim that Norwood did not receive this message or Bragg's contention that Piggott believed his relationship with Norwood continued throughout Bragg's trial.
As the California Court of Appeal viewed the evidence: "Trial counsel withdrew from Norwood's case; he was aware he could fully question Norwood as a witness if he chose to do so." This factual finding by a state court is "presumed to be correct" and Bragg has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. S 2254(e)(1). This presumption is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981). Bragg has failed to present clear and convincing evidence that Piggott continued to represent Norwood throughout Bragg's trial, and, therefore, we cannot hold that Bragg's conclusory assertions establish an actual conflict of interest.2
Even if it had been shown that Piggott actively represented...
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