Turk v. White, 95-17319
| Decision Date | 21 January 1997 |
| Docket Number | No. 95-17319,95-17319 |
| Citation | 105 F.3d 478 |
| Parties | 97 Daily Journal D.A.R. 719 Allen R. TURK, Petitioner-Appellant, v. Theo WHITE, Warden; Daniel E. Lungren, Attorney General of the State of California, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John P. Balazs and Connie M. Alvarez, Assistant Federal Public Defenders, Sacramento, California, for petitioner-appellant.
Ward A. Campbell, Deputy Attorney General, Sacramento, California, for respondents-appellees.
Appeal from the United States District Court for the Eastern District of California, David F. Levi, District Judge, Presiding. D.C. No. CV-94-00132-DFL.
Before: GOODWIN, WALLACE, and RYMER, Circuit Judges.
Turk, a California state prisoner, appeals from the district court's denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm.
On April 25, 1985, while serving a life sentence for a 1981 second degree murder conviction, Turk got into an argument with Correctional Officer Bradley. At Turk's request, Sergeant Washington held a meeting the next day with Bradley and Turk to discuss what happened. Though the parties disagree as to who started it, an altercation occurred in the office. Turk bit off part of Bradley's right earlobe and also bit Bradley's cheek, leaving a large wound. Turk also bit Washington's forearm.
A jury found Turk guilty of violating California Penal Code § 4500 (West 1982), which, in 1986, stated: "Every person undergoing a life sentence in a state prison of this state, who, with malice aforethought, commits an assault upon the person of another ... by any means of force likely to produce great bodily injury is punishable with death or life imprisonment without possibility of parole." The state trial court sentenced Turk to life without possibility of parole for nine years, plus additional time for ancillary counts. The court of appeal affirmed his sentence in an unpublished decision, and the California Supreme Court denied his petition for review.
In a 1993 unpublished disposition, our court granted habeas corpus vacating Turk's 1981 murder conviction because there was "a bona fide doubt as to the defendant's competency to stand trial." On retrial, Turk pled no contest to a charge of voluntary manslaughter and received credit for time served. Thus, Turk remains incarcerated solely due to the 1986 conviction for his assault on Bradley.
Shortly after our reversal, Turk filed a petition for federal habeas corpus relief to challenge his 1986 conviction. Turk dismissed this claim to exhaust his state remedies. Eight months later, Turk filed a second petition for habeas corpus relief, and it was referred to a magistrate judge. The magistrate judge's findings and recommendations urged a denial of Turk's petition. The district judge denied a request for an evidentiary hearing, accepted the magistrate judge's findings and recommendations, and denied Turk's petition for a writ of habeas corpus.
We review de novo the district court's denial of Turk's petition for habeas corpus relief. Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996). We review for an abuse of discretion the district court's denial of Turk's request for an evidentiary hearing. United States v. Andrade-Larrios, 39 F.3d 986, 991 (9th Cir.1994). Since Turk filed his petition for federal habeas corpus relief before April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (amendments to 28 U.S.C. §§ 2241-2255) does not apply to this case. Jeffries v. Wood, 103 F.3d 827 (9th Cir.1996).
To be successful in his claim of ineffective counsel, Turk has two separate burdens of proof:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Turk first argues that Mr. Dorfman, his counsel for the 1986 trial, rendered ineffective assistance by not accepting the trial court's offer to bifurcate the trial. This would have divided the trial into two proceedings: one to determine whether he was guilty of assaulting Bradley, and one to determine whether Turk qualified for section 4500 because he was serving a life sentence. Dorfman refused the offer because it "would make a needlessly long trial of the thing." He also stated that
Even if we assume that Dorfman's refusal to bifurcate constitutes deficient performance, Turk cannot establish prejudice. Because Turk chose to testify, the State could impeach his testimony with his prior felony convictions. Thus, the jury still would have learned of Turk's prior convictions for second degree murder, rape, and forced oral copulation. Bifurcation or no bifurcation, the jury would have learned of Turk's violent past.
Turk contends that the trial judge would have ruled that those prior convictions were "more prejudicial than probative" under California Evidence Code § 352, and would have prevented the jury from hearing them. However, nothing in the record suggests that the trial court would have disallowed those prior convictions, all violent felonies. Without more, Turk cannot demonstrate that Dorfman's failure to bifurcate the trial "deprive[d] the defendant of a fair trial." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Turk also contends that Dorfman provided ineffective assistance of counsel by not investigating an insanity defense. Turk asserts that he told Dorfman of his mental problems, yet Dorfman ignored Turk's claim of incompetency and pursued only a theory of self-defense. Turk argues that Dorfman's refusal even to investigate Turk's competency violated his Sixth Amendment right to competent counsel.
Dorfman explained that he elected the self-defense theory because he believed it was Turk's strongest defense. Evidence existed that Bradley, not Turk, initiated the fight, and Bradley admitted that he acted unprofessionally on the day of the prior dispute which led up to the meeting and altercation. Dorfman stated that he refused to pursue the mental incompetency defense because it "would have been inconsistent with a defense based upon the facts as presented by both [Turk] to me and as contained within the officers' reports."
Turk's present counsel conceded at oral argument that pursuit of both the self-defense theory and the mental incompetency theory would be unsound. The California Jury Instructions on self-defense and mental incompetency confirm the conclusion of Turk's counsel. In 1986, CALJIC 5.30, the instruction for "self-defense against assault," stated that Turk would be innocent of assault if "as a reasonable person, he ha[d] grounds for believing and d[id] believe that bodily injury [wa]s about to be inflicted upon him." CALJIC 4.00, the instruction for an insanity defense, required the jury to find that Turk "was incapable of knowing or understanding the nature and quality of his act."
Thus, the self-defense theory required Turk to prove that he acted reasonably, while the insanity defense required Turk to prove that he did not understand what he was doing. Pursuit of these conflicting theories would have confused the jury and undermined whatever chance Turk had of an acquittal. Since we "apply[ ] a heavy measure of deference to counsel's judgments," Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, we conclude that Dorfman did not provide deficient counsel by pursuing solely the self-defense theory. Consequently, the district court did not abuse its discretion in rejecting Turk's request for an evidentiary hearing. Even if Turk did tell Dorfman about his mental problems, Dorfman's pursuit of only the self-defense claim was reasonable.
Turk contends that Dorfman's failure to investigate the merits of the mental incompetency defense constitutes Strickland error. Yet Strickland, which arose from a "failure to investigate" claim, held otherwise:
[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.
....
... For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.
Id. After Dorfman reviewed the preliminary facts of the case, he reasonably decided that he would pursue only a theory of self-defense. Even if Turk told Dorfman of his mental problems, Dorfman did not need to investigate Turk's competency. As Strickland suggests, once Dorfman reasonably selected the...
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...inconsistent defenses are not allowed in criminal prosecutions. Neither case made such a ruling. In one of the cases cited, Turk v. White, 105 F.3d 478 (9th Cir.1997), vacated on rehearing, 116 F.3d 1264 (9th Cir.1997), the issue was whether or not trial counsel acted properly in not pursui......
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