Brown v. Myers, No. 96-56118

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtCANBY
Citation137 F.3d 1154
Parties98 Cal. Daily Op. Serv. 1599, 98 Daily Journal D.A.R. 2239 Melvin Derrick BROWN, Petitioner-Appellant, v. Edward Charles MYERS; Attorney General Of The State Of California, Respondents-Appellees.
Decision Date06 March 1998
Docket NumberNo. 96-56118

Page 1154

137 F.3d 1154
98 Cal. Daily Op. Serv. 1599, 98 Daily Journal
D.A.R. 2239
Melvin Derrick BROWN, Petitioner-Appellant,
v.
Edward Charles MYERS; Attorney General Of The State Of
California, Respondents-Appellees.
No. 96-56118.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Nov. 4, 1997.
Decided March 6, 1998.

Page 1155

Callie A. Glanton, Federal Public Defender, Los Angeles, California, for petitioner-appellant.

Kenneth N. Sokoler, Deputy Attorney General, Los Angeles, California, for 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-90-00848-WJR.

Before: CANBY, and THOMPSON, Circuit Judges and MOLLOY, * District Judge.

CANBY, Circuit Judge:

Melvin Derrick Brown appeals the district court's dismissal of his petition for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. Brown argues that he was prejudiced by ineffective assistance of counsel during his trial in California state court for attempted murder. The district court concluded that Brown's counsel was ineffective, but that the harm was not prejudicial. We review de novo, Dyer v. Calderon, 122 F.3d 720, 732 (9th Cir.1997), and conclude that the harm to Brown was prejudicial. Accordingly, we reverse and remand to the district court with instructions to issue the writ, unless California retries the defendant within a reasonable period of time.

FACTUAL AND PROCEDURAL BACKGROUND

In 1987, petitioner Melvin Brown and Gregory Brown quarreled outside of Gregory's residence. 1 Gregory hit Melvin in the mouth. Gregory's brother Andre and sister Tasha witnessed the fight. After being hit, Melvin drove away, but returned to the area 10 to 25 minutes later, with his brother (and codefendant) Mitchell. Melvin and Gregory fought again on a street near Gregory's house, for two to five minutes, while Gregory's family looked on. Melvin hit Gregory in the mouth, and Gregory then choked Melvin and threw him to the ground. Melvin then got up. Gregory and his brother Andre testified that Melvin said to Gregory "you're dead." Gregory's sister Tasha testified that Melvin said "I'll be back." Gregory's girlfriend Tammy Highsmith, also present, testified that she did not hear Melvin say anything. Melvin then drove away.

Gregory returned to his house and prepared to leave. He went out to his father's car, heard shots, and ran back toward the house. Inside, he learned he had been shot in the thigh. He was taken to the hospital, treated, and released. Descriptions of the assailant varied. Tammy Highsmith testified that she looked out of Gregory's house after the shots were fired and saw Melvin running away. Highsmith's testimony was that the shots were fired about 20 minutes after the second fight ended, placing the shooting at about 6:20 p.m. Gregory testified that as he ran back to the house, he saw the shooter running into the alley; he did not observe the shooter's face, but saw that he was wearing a blue sweatshirt and dark blue or black corduroy pants. Melvin had been wearing a dark blue sweatshirt and dark pants during the earlier fights. Gregory did not, however, identify Melvin as the shooter when interviewed by a policeman at the scene; he told the officer that the shooter's weapon was a black revolver.

Gregory's brother Andre testified that he was riding his bicycle through the alley when

Page 1156

he heard shots; he then saw Melvin running through the alley holding a gun, which appeared to be a chrome .45. Melvin got into a car driven by Mitchell, which went a short distance and let him out. Melvin then got into another car driven by one Jasper Deeds, and departed. Andre did not tell the police officer about the second car.

Gregory's sister Tasha testified that she saw Melvin shooting at Gregory with a long black gun. She did not talk to the officer at the scene.

Melvin testified at trial. He stated that, at the end of the second fight, he said nothing but simply left the scene. He had no gun. He went to the house of his girlfriend, Senta Saunders. He arrived between 5:45 and 6:00 p.m., when it was still light. He telephoned home and spoke with his sister, Carmen. Two friends of Cynthia's came over and the group went to the house of one of the friends and watched television until about 8:00 p.m.

Although Melvin insisted throughout that he was with friends at the time of the shooting, his attorney did not investigate Melvin's alibi claim or present any alibi witnesses to corroborate Melvin's testimony. He also made no effort to contact one Clinton Walker, a neighbor of Gregory's; Andre had stated at the preliminary hearing that he had seen Walker at the alley when Melvin ran through it.

Melvin's attorney defended Melvin by arguing the potential for bias among the prosecution's witnesses. He also explained to the jury during his closing argument that photographs of the crime scene showed bullet holes in a car and a tree. The bullet holes were positioned so that the shooter must have been down the street from Gregory. All four prosecution witnesses, however, placed the shooter across the street from Gregory. 2

The prosecution in its closing argument emphasized the lack of corroboration for Melvin's testimony:

How many people have we got? Six or seven? He went to...

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54 practice notes
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    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 20, 2013
    ...this trier of fact never had the chance to do so. This undermines our confidence in the outcome of the proceedings....”); Brown v. Myers, 137 F.3d 1154, 1157–58 (9th Cir.1998) (petitioner suffered prejudice from counsel's failure to present testimony of alibi witnesses even though their tes......
  • Matthews v. Abramajtys, Civil Action No. 98-CV-73319-DT.
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    ...F.Supp. at 1008 (counsel was deficient, in part, for failing to interview potentially effective alibi witness); accord Brown v. Myers, 137 F.3d 1154, 1158 (9th Cir.1998) (finding counsel deficient for failing to investigate and call possible alibi witnesses); Grooms v. Solem, 923 F.2d 88, 9......
  • Center for Biological Diversity v. Nhtsa, No. 06-71891.
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    ...remand with instructions to prepare an EIS. See, e.g., Nat'l Parks & Conservation Ass'n., 241 F.3d at 733-34; Idaho Sporting Cong., 137 F.3d at 1154. The distinction—between cases where it is appropriate to order immediate preparation of an EIS and those where it is not—is implicit in t......
  • Skakel v. Comm'r of Corr., SC 19251
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    • Supreme Court of Connecticut
    • May 4, 2018
    ...and there were other alibi witnesses presented at trial." [Citation omitted; internal quotation marks omitted.] ); Brown v. Myers , 137 F.3d 1154, 1155–56, 1157–58 (9th Cir. 1998) (petitioner suffered prejudice from counsel's failure to present alibi witnesses, even though their testim......
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55 cases
  • Center for Biological Diversity v. Nhtsa, No. 06-71891.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 18, 2008
    ...to remand with instructions to prepare an EIS. See, e.g., Nat'l Parks & Conservation Ass'n., 241 F.3d at 733-34; Idaho Sporting Cong., 137 F.3d at 1154. The distinction—between cases where it is appropriate to order immediate preparation of an EIS and those where it is not—is implicit in th......
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
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    ...federal regulations in Inland Empire, we defer to the Forest Service's expertise in interpreting its [land management plan]." Thomas, 137 F.3d at 1154. 22. The KNF 2001 Monitoring and Evaluation Report, dated Sept. 23, 2002, was not included in the Administrative Record. However, it was iss......
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    ...probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. 2052; see also Brown v. Myers, 137 F.3d 1154, 1157 (9th 1. Failure to investigate and present King McCarthy's testimony (Claim 1) According to Brown, his mother first informed his trial cou......
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