Totten v. Merkle

• Decision Date: 09 March 1998
• Docket Number: No. 97-55109,97-55109
• Citation: 137 F.3d 1172
• Parties: 98 Cal. Daily Op. Serv. 1670, 98 Daily Journal D.A.R. 2305, 98 Daily Journal D.A.R. 2473 Anthony Lee TOTTEN, Petitioner-Appellant, v. William A. MERKLE, Warden; Attorney General of the State of California, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1172

137 F.3d 1172

98 Cal. Daily Op. Serv. 1670, 98 Daily Journal

D.A.R. 2305,

98 Daily Journal D.A.R. 2473

Anthony Lee TOTTEN, Petitioner-Appellant, v. William A. MERKLE, Warden; Attorney General of the State of California, Respondents-Appellees.

No. 97-55109.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 9, 1998.

Decided March 9, 1998.

Abby Besser Klein, Los Angeles, California, for petitioner-appellant.

Joyce N. Burnett, Deputy Attorney General, San Diego, California, for respondents-appellees.

Appeal from the United States District Court for the Central District of California; Linda H. McLaughlin, District Judge, Presiding. D.C. No. CV-95-00447-LHM.

Before: LAY, ^* GOODWIN and REINHARDT, Circuit Judges.

Opinion by Judge LAY; Dissent by Judge REINHARDT.

LAY, Circuit Judge.

Anthony Lee Totten, a California state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Totten claims denial of his right to a fair trial and ineffective assistance of counsel in his conviction for attempted murder and infliction of great bodily injury. He contends representation was deficient because trial counsel failed to present a defense that methamphetamine intoxication and paranoia prevented Totten from forming the requisite intent to kill. The district court adopted the magistrate judge's report and recommendation and denied the writ. We affirm.

I. Background

Totten was convicted in 1991 of "willful, deliberate and premeditated" attempted murder in connection with the 1990 shooting of his estranged, pregnant wife in Santa Ana, California. Evidence presented at trial showed that Totten and his wife Janet had separated and attempted to reconcile several times during 1990. She became pregnant with Totten's third child, but moved out with their two children in October 1990. There were several incidents in which Totten became violent with his wife, including one in which he threatened to kill her. She sought and was granted a restraining order against him on October 26, 1990.

On October 30, 1990, Janet was returning to her car following a doctor's appointment when Totten approached her, holding a long white box. He told her the box contained a doll swing for their daughter. Totten asked if he could put the box in the car and have a ride to a nearby construction site where he was working. Mrs. Totten agreed, but once inside the car, Totten pulled a rifle out of the box. At trial, Totten contended he brought the gun to elicit sympathy from his wife or, failing that, to commit suicide.

Totten and his wife struggled with the rifle inside the car. Witnesses testified they then saw Janet running and screaming from the car with Totten following. Totten raised and fired the rifle, hitting Mrs. Totten in the head. Witnesses testified that Totten walked over and nudged her with his foot, then walked away and tossed the rifle in a trash bin.

Extensive evidence was presented at trial showing planning and deliberate action taken by the petitioner prior to and during the shooting. Three days before the incident, Totten purchased a weapon and ammunition. Sometime between then and the day of the shooting, he painted over the red lettering of the rifle box to disguise it as a birthday present for his daughter. On the day of the shooting, Totten waited outside the medical building for his wife to complete her appointment. When she came outside, Totten followed her, stated the box was a birthday present, and convinced his wife to let him inside of the car.

Totten's defense at trial was that the rifle fired accidentally. Mrs. Totten survived the shooting, but was left deaf in one ear. Totten was convicted by a jury and was sentenced to a life term plus three years.

Totten subsequently filed three petitions for habeas relief in state courts, all of which were denied. Totten's petition for federal habeas relief was filed in the U.S. District Court for the Central District of California in May 1995.

Totten contends he was denied a fair trial and the effective assistance of counsel when his trial counsel failed to pursue a defense based on Totten's longtime use of methamphetamines. Totten claims he told his attorney he had been on a "speed binge" in the days leading up to the shooting, and that he was "high" and "out of it." In describing his lawyer's reply, Totten states: "He said that [I] did drugs, [Janet] did drugs and he didn't want to get into the drugs." Totten's trial counsel apparently contacted an unnamed forensic psychiatrist, who told him that methamphetamine use could not prevent a person from forming the specific intent to kill.

In his habeas petition, Totten presented a declaration to the district court from Dr. Ronald K. Siegel, a specialist in "psychopharmacology," stating that Totten suffered from methamphetamine intoxication and paranoia, and that this could have formed the basis of a mental-state defense. Habeas counsel also prepared a proposed declaration for the trial counsel's signature concerning the facts in the case. However, trial counsel did not sign the declaration. Habeas counsel submitted the unsigned declaration to the district court in support of the habeas petition.

On October 30, 1996, a magistrate judge filed a report recommending denial of the habeas petition. The district court adopted the magistrate's report and recommendations and denied the petition with prejudice on November 18, 1996.

II. Ineffective assistance of counsel

Under the standard set by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), to establish a claim of ineffective assistance of counsel, a petitioner must show that: 1) counsel's performance was deficient, falling below the level of "reasonably effective assistance," and 2) the deficient performance produced prejudice to the defense.

Totten claims trial counsel made at best only a cursory investigation into a mental impairment defense. On the other hand, the state argues trial counsel made a strategic decision to forego the defense since he felt it would be prejudicial to the defendant to pursue a drug-related defense. Counsel did contact a forensic psychiatrist and was told a mental-state defense based on the petitioner's methamphetamine use was not feasible. However, this psychiatrist never examined Totten, and his expertise in the field is not known. Neither this expert's name nor credentials has been presented to this court.

Totten asserts that the declaration of Dr. Siegel shows a mental impairment defense was at least viable. He argues that trial counsel's failure to properly investigate evidence to support such a defense fell below the level of "reasonably effective assistance." Contrary to the magistrate judge's report, we will assume for purposes of argument that Totten's habeas petition satisfies the first prong of the Strickland standard.

Under Strickland, a showing of deficient trial counsel performance is not enough to establish a successful habeas claim. A petitioner also must establish that prejudice resulted from the deficient performance. See, e.g., Bloom v. Calderon, 132 F.3d 1267, 1270-71 (9th Cir.1997); Harris v. Wood, 64 F.3d 1432, 1435 (9th Cir.1995). In other words, a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Given the facts and circumstances of this case, the magistrate judge held the petitioner could not demonstrate such prejudice. He relied upon the fact that there was overwhelming evidence presented at trial of planning and deliberate action by Totten. Thus, he found a mental-impairment defense based on methamphetamine intoxication and paranoia was completely at odds with Totten's actions. The court held it is not "reasonably probable" that, even if presented, the jury would have altered its verdict. We must agree.

Petitioner relies upon the declaration of Dr. Siegel. Dr. Siegel filed an affidavit stating: "Anthony continued to sniff methamphetamine right up to minutes before the shooting of his wife on October 30, 1990.... The physical attack on his wife and the shooting happened quickly, reflexively." CR 3 at 30. The magistrate judge found the overwhelming weight of evidence showed that the attempted murder of Janet Totten was anything but quick and reflexive. Totten purchased a rifle three days prior to the shooting. He painted over the box to disguise the weapon and concocted an elaborate plan to get close to his wife. Following the shooting, he purposefully nudged the victim with his foot to make sure she was hit before tossing his weapon into a trash bin and leaving on foot. In addition, there was related evidence as to Totten's conversations and actions during the week prior to the shooting which demonstrated Totten's cognitive role. ¹

We deem it significant also that the vast majority of information upon which Dr. Siegel bases his opinion was from conversations with Totten in late 1993 and early 1994. Totten's testimony at trial was full of inconsistencies and, as the verdict demonstrates, was not believed by the jury. It is highly unlikely that the jury would have found Dr. Siegel's opinion, based upon information provided by Totten himself, credible or persuasive.

In short, we find it only speculative that the presentation of a mental impairment defense based on methamphetamine use was likely to change the outcome of the jury verdict. The magistrate judge found that the representation by counsel did not undermine confidence in the verdict. Because there was no prejudice, the magistrate judge denied petitioner's habeas claim. The district court agreed with the conclusion. In view of the existing record, we think the...