Hall v. Sumner

• Decision Date: 21 April 1981
• Docket Number: No. C-79-1797 SW.,C-79-1797 SW.
• Citation: 512 F. Supp. 1014
• Court: U.S. District Court — Northern District of California
• Parties: Preston HALL, Petitioner, v. George W. SUMNER, Warden of California State Prison at San Quentin, Respondent.

512 F. Supp. 1014

Preston HALL, Petitioner, v. George W. SUMNER, Warden of California State Prison at San Quentin, Respondent.

No. C-79-1797 SW.

United States District Court, N. D. California.

April 21, 1981.

COPYRIGHT MATERIAL OMITTED

Preston Hall, Tamal, Cal., for petitioner.

George Deukmejian, Atty. Gen., of the State of California, Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, J. Patrick Collins, Deputy Attys. Gen., San Francisco, Cal., for respondent.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

SPENCER WILLIAMS, District Judge.

Petitioner, Preston Hall, is before this court in forma pauperis and in pro per seeking relief pursuant to 28 U.S.C. § 2254(b)(c). He claims he was denied effective assistance of counsel at trial. In support of this petition, petitioner alleges ten specific errors or omissions of his defense counsel.¹ Respondent contends that on eight of the claims, petitioner has failed to exhaust remedies available in the state courts and thus his petition cannot be considered in this court. On the remaining two claims, the State admits exhaustion but argues the claims lack merit. The court finds petitioner has exhausted his state remedies and considers his petition on the merits. However, his claims of ineffective assistance of counsel are rejected.

FACTUAL BACKGROUND

In early December, 1974, petitioner allegedly kidnapped and assaulted Shirley Wilson, petitioner's long-time girlfriend. She subsequently brought charges against him. In January, 1975, petitioner was charged with intimidation of a witness — Shirley Wilson. In March, 1975, petitioner was charged with a second assault on Shirley Wilson, which allegedly occurred on January 29, 1975. He was also charged with the following violations said to have occurred on February 9, 1975: the murder of Shirley Wilson; assault with intent to commit murder and attempted murder of Curtis Boyd, Wilson's nephew; burglary with intent to commit murder and possession of a concealed weapon by a convicted felon. All of the charges were consolidated for trial.

The actual trial commenced on October 6, 1975 and lasted twelve days. The jury reached a verdict of guilty on all charges except the charge of assault with intent to commit murder, on which they reached no decision.

Before addressing the merits of the petition, this court must first address respondent's argument that petitioner has failed to exhaust state remedies.

Exhaustion of available state remedies.

Respondent contends that all but two of petitioner's claims have not been fully adjudicated in state court. Petitioner presented his case through the entire appeals process, but did not utilize state habeas corpus proceedings. However, the Ninth Circuit has found that in California, the issue of ineffective assistance of counsel may be presented on appeal.² Petitioner is not required to show that he sought collateral review in state court before becoming eligible to present his petition for habeas corpus relief in federal court.³

Respondent contends a claim is not raised unless the alleged facts giving rise to the claim appear in the trial record. This is not true; the court may also look to the appeals record to determine whether petitioner has presented his claims to the state court.⁴

In Smith v. Digmon, the United States Supreme Court found that claims raised in the appellate briefs satisfied the exhaustion requirement:

It is too obvious to merit extended discussion that whether the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner's brief in the state court, and, indeed, in this case, vigorously opposed in the State's brief. It is equally obvious that a district court commits plain error in assuming that a habeas petitioner must have failed to raise in the state courts a meritorious claim that he is incarcerated in violation of the Constitution if the state appellate court's opinion contains no reference to the claim.⁵

Furthermore, the Ninth Circuit has held that the exact claims presented in the habeas corpus petition need not have been raised in the state proceedings:

The question ... is whether any of the contentions made in the present petition are the substantial equivalent of contentions presented by petitioner to the state courts upon his appeal from conviction. Footnote omitted. If so, they should here be considered on the merits. Emphasis added.⁶

As recognized by the United States Supreme Court in Wilwording v. Swenson, the exhaustion requirement was "merely ... designed to give the State an initial `opportunity to pass upon and correct' alleged violations of its prisoners' federal rights."⁷ The need for exhaustion of state remedies is a matter of comity, not a limitation on the power nor a limitation on the jurisdiction of the federal courts.⁸

Under these principles, the court examines each of petitioner's claims and finds they were raised sufficiently to satisfy the exhaustion requirement. The specific references evidencing where and how these claims were raised are set out in a footnote.⁹

Ineffective assistance of counsel.

The test for ineffective assistance of counsel was set out by the Ninth Circuit, sitting en banc, in Cooper v. Fitzharris:¹⁰

Defense counsel's errors or omissions must reflect a failure to exercise the skill, judgment, or diligence of a reasonably competent criminal defense attorney — they must be errors a reasonably competent attorney acting as a diligent conscientious advocate would not have made....¹¹

Furthermore, when such a claim "rests upon specific acts and omissions of counsel at trial ... relief will be granted only if it appears that the defendant was prejudiced by counsel's conduct".¹²

In this case, petitioner's claim of ineffective assistance of counsel rests upon ten specific acts and/or omissions of defense counsel during both the pre-trial and trial proceedings. This court, after reading the entire record¹³, finds that petitioner was not prejudiced by defense counsel's conduct and his claim for relief must be denied.

In discussing each of the alleged errors of petitioner's trial counsel¹⁴, the following determinations must be made: first, was defense counsel's conduct within the range of competence demanded of criminal defense attorneys, and, if not, was petitioner prejudiced by the defense counsel's conduct — whether the alleged errors are considered singly, or in combination?¹⁵

Four of petitioner's ten allegations are either flatly contradicted by the record or not supported by a sufficient factual basis and therefore are not discussed in detail. These are set out in a footnote with the relevant references to the record where appropriate.¹⁶ All but two of the remaining errors alleged can be characterized as tactical decisions or fall well within the standard of competence demanded by Cooper.¹⁷ The last two errors, however, raise serious questions concerning the competency of counsel at trial. All six are discussed in more detail below.

At the outset, several points should be emphasized. First, "the Constitution does not guarantee representation that is infallible. The accused `assumes the risk of ordinary error in either his or his attorney's assessment of the law and facts...'."¹⁸ Second, this court will not attempt to second-guess the choice of trial tactics made by counsel at the trial level. In this regard, the observations made by the U.S. Court of Appeals in United States v. Bosch¹⁹ apply:

Even the most skillful criminal attorneys make errors during a trial. The myriad of decisions which must be made by defense counsel quickly and in the pressure cooker of the courtroom makes errorless representation improbable, if not impossible. This is particularly so since the determination of whether there have been errors is made by a court far removed from the heat of trial combat and with the time necessary to make a reasoned judgment. Thus, a choice between trial tactics, which appears unwise only in hindsight, does not constitute constitutionally-deficient representation under the reasonably competent assistance standard. Emphasis added.²⁰

With the foregoing in mind, the court finds that the following allegations fall within the parameters of tactical decisions, none of which amount to ineffective assistance of counsel:

(1) Defense counsel's attempt to waive petitioner's first preliminary hearing.

On the morning of petitioner's first preliminary hearing in December, defense counsel entered a waiver of petitioner's right to the preliminary hearing.²¹ That afternoon, the court denied the defense counsel's motion for a continuance, and the preliminary examination was then conducted.

Although counsel's tactical decision, motivated by his lack of preparation at that stage²², may have been an error in judgment, such conduct does not amount to ineffective assistance of counsel. The municipal court found "ample evidence to hold the defendant to answer on both counts."²³ Moreover, petitioner was not precluded thereafter from calling witnesses at the time of trial to address these counts before the trier of facts.

(2) Defense counsel's stipulation to petitioner's prior felony convictions.

Near the end of trial, the defense announced that the parties would enter into a stipulation regarding two prior convictions of the petitioner.²⁴ The court immediately inquired of the defendant whether he was intending to waive certain of his rights regarding self-incrimination. The record indicates defense counsel had not discussed such a stipulation with the petitioner prior to this time.²⁵

Despite counsel's initial — and perhaps hasty — statement stipulating to the prior convictions, the decision itself appears to be a tactical one²⁶, and cannot be viewed as outside the range of competence expected of...