(HC) Greenberg v. Covello

• Court: District Court, E.D. California
• Decided: September 5, 2024
• Docket: 2:19-cv-02238
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MORRIS ANTHONY GREENBERG, No. 2:19-cv-02238-DAD-AC (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 14 PATRICK COVELLO, Acting Warden, PETITION FOR HABEAS CORPUS Mule Creek State Prison, 15 (Doc. No. 23) Respondent. 16 17 Petitioner Morris Anthony Greenberg, a state prisoner proceeding through counsel, filed 18 the pending petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 In his petition, petitioner asserts that his Sixth and Fourteenth Amendment rights under 22 the U.S. Constitution were violated when he was tried and convicted for the first-degree murder 23 of Anthony Dumont, for which he is currently serving a 50-years-to-life sentence in state prison. 24 (Doc. No. 1-1 at 6, 27.) Petitioner asserts four claims for federal habeas relief in his petition. 25 (See generally, Doc. No. 1-1.) 26 On January 5, 2024, the assigned magistrate judge issued the pending findings and 27 recommendations recommending that federal habeas relief be granted as to petitioner’s first 28 claim, in which petitioner argued that his trial counsel’s failure to investigate and present a mental 1 health defense to support his theory of imperfect self-defense constituted ineffective assistance of 2 counsel under Strickland v. Washington, 466 U.S. 668 (1984). (Doc. No. 23.)1 The findings and 3 recommendations recommended denial of the petition as to petitioner’s other three claims for 4 federal habeas relief. (Id.) Those findings and recommendations were served on all parties with 5 notice that any objections to the findings and recommendations were to be filed within fourteen 6 (14) days. (Id. at 39.) On January 19, 2024, respondent filed lengthy objections to the findings 7 and recommendations. (Doc. No. 24.) Petitioner filed a response thereto on May 17, 2024, but 8 did not file objections of his own. (Doc. No. 31.) 9 Respondent’s objections span 41 pages and raise numerous arguments as to why fair- 10 minded jurists could find that petitioner did not receive ineffective assistance of trial counsel 11 under Strickland. (Doc. No. 24.) The crux of these objections is that: (1) the evidence 12 introduced at petitioner’s trial supported reasonable conclusions that trial counsel’s investigation 13 was sufficiently thorough under the circumstances; and (2) it was not reasonably likely that an in- 14 person mental health evaluation would have yielded a different result. (See id. at 16.) While the 15 undersigned will address certain objections that warrant further discussion below, many of 16 respondent’s objections advance arguments that were already thoroughly and correctly addressed 17 in the findings and recommendations or fail to articulate a cognizable basis for rejecting the 18 findings and recommendations. Such objections therefore do not merit further discussion and do 19 not alter the undersigned’s decision to adopt the findings and recommendations for the reasons 20 explained below.

21 1 Although the findings and recommendations found that the California Supreme Court’s decision in petitioner’s direct appeal to be the decision that is subject to AEDPA review, they also 22 analyzed the El Dorado County Superior Court’s decision in the alternative, in the event the 23 assigned district court disagreed on which state court decision is subject to review by this federal habeas court. (See Doc. No. 23 at 23–28; see also id. at 18 n.7 (“Should the assigned district 24 judge disagree, the undersigned provides an alternative discussion of the superior court’s decision below.”)). Notably, in reviewing both the California Supreme Court’s decision and the El Dorado 25 County Superior Court’s decision, the magistrate judge came to the same conclusion: § 2254(d) poses no barrier to habeas relief as to petitioner’s first claim. (See generally, Doc. No. 23.) After 26 reviewing de novo petitioner’s claim of ineffective assistance, the magistrate judge concluded that 27 petitioner had satisfied both prongs of the Strickland standard. (Id. at 28–30.) Because the undersigned finds that either approach would yield the same result, the court need not decide 28 which of the state court decisions is subject to AEDPA review. 1 A. Respondent’s Objections as to the Sufficiency of Defense Counsel’s Investigation 2 The findings and recommendations concluded that “[c]ounsel’s failure to conduct even a 3 preliminary mental state investigation was so clearly unreasonable that the California Supreme 4 Court cannot reasonably have found that the petitioner failed to state a prima facie case of 5 deficient performance.” (Doc. No. 23 at 21.) The magistrate judge also determined that there 6 was no strategic or tactical justification for trial counsel’s failing to ask Dr. Eugene P. Roeder 7 (whose services had been authorized by the trial court and who was well known to petitioner’s 8 trial counsel) or another expert to evaluate petitioner’s mental health before settling on a trial 9 strategy.2 (Id. at 20.) 10 Respondent objects to this finding, claiming that a fair-minded jurist could find that trial 11 counsel performed a reasonable investigation under the circumstances. (Doc. No. 24 at 16–17.) 12 Respondent asserts that trial counsel consulted with several individuals who had psychology 13 backgrounds and none of them indicated that mental health defenses should be pursued. (Id. at 14 32.) Therefore, respondent claims that counsel’s preliminary investigation inherently ruled out 15 mental health defenses. (Id.) 16 Petitioner counters that there is no evidence showing that defense counsel’s consultations 17 specifically addressed whether a psychological evaluation should be conducted or whether a 18 mental health defense should be pursued. (Doc. No. 31 at 36, 61.) Petitioner contends that given 19

20 2 In his objections, respondent argues that “‘[s]trategic’ or ‘tactical’ is not the standard. Instead, counsel’s decisions need only be reasonable under the circumstances.” (Doc. No. 24 at 34) 21 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000) (‘The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.”)). However, as petitioner 22 argues in his response, “[b]y finding that [trial counsel] lacked a strategic or tactical rationale, the 23 Magistrate necessarily also found that his decision was unreasonable.” (Doc. No. 31 at 64.) The court agrees that the decision by petitioner’s trial counsel not to investigate petitioner’s mental 24 health was not reasonable. (Doc. No. 23 at 20–21) (“Although counsel was aware of PTSD and knew about petitioner’s law enforcement background, and despite the big flashing red light of 25 petitioner’s attempted suicide, he ‘did not see a mental defense in this case.’ And despite recognizing that the suicide attempt needed to be addressed by the defense at trial, counsel failed 26 to seek a professional opinion regarding petitioner’s state of mind. On the facts of this case, it 27 was objectively unreasonable for trial counsel not to explore the question whether a defense based on petitioner’s mental state, or incorporating expert mental health opinion evidence, was 28 available.”). 1 his trial counsel’s poor recollection and record-keeping regarding these experts and the seemingly 2 limited scope of his interactions with them, these few consultations do not constitute a sufficient 3 investigation to justify neglecting to have petitioner psychologically evaluated. (Id. at 35.) 4 Indeed, respondent provides minimal detail as to what petitioner’s trial counsel discussed with 5 these experts who had psychology backgrounds. Many of the interactions appear to have been 6 minimal, and defense counsel himself even explained that one of these experts was unreliable. 7 (Id. at 31–35.) Therefore, respondent’s argument that conversations petitioner’s trial counsel had 8 with psychology experts ruled out a mental health defense is unavailing. 9 Respondent also contends in his objections that trial counsel’s decision to forgo an in- 10 person mental health evaluation was a strategic one, because “perfect self-defense, and therefore 11 acquittal, emerged as the clear choice.” (Doc. No. 24 at 18.) According to respondent, a mental 12 health defense would have guaranteed at least a manslaughter conviction, leading both trial 13 counsel and petitioner to focus on a strategy of acquittal based on perfect self-defense. (Id. at 13.) 14 The court is not persuaded by this argument. As petitioner points out in his petition and in his 15 response to the objections, a mental health defense could have been employed to support both the 16 subjective element and the objective reasonableness of petitioner’s actions, as well as his 17 credibility. (See Doc. Nos. 1-1 at 15; 31 at 30). Under similar circumstances, the Ninth Circuit 18 has stated: 19 The State has been unable to explain why self-defense and a defense based on mental illness were mutually exclusive under the existing 20 circumstances. Indeed, the two defenses were quite likely to be complementary: [the petitioner’s] fear for his own safety during the 21 fight with [the victim] could have been exacerbated by his psychological history of multiple trauma. 22 23 Seidel v. Merkle, 146 F.3d 750, 756 (9th Cir. 1998)). Such is the case here. It is simply not true 24 that presenting a mental health defense would have guaranteed at least a manslaughter conviction, 25 as contended by respondent. A person with PTSD can still, of course, harbor an objectively 26 reasonable belief in the need to defend themself. In short, there was nothing inconsistent in 27 pursuing both a mental health defense and a self-defense theory in this case and the failure to 28 conduct any investigation into the former cannot be justified as a tactical or strategic decision. 1 Furthermore, that counsel and petitioner chose to focus on acquittal could not have 2 justified a failure to obtain a psychological evaluation in this case. See Weeden v. Johnson, 854 3 F.3d 1063, 1070 (9th Cir. 2017)3 (“[The petitioner’s] counsel could not have reasonably 4 concluded that obtaining a psychological examination would conflict with his trial strategy 5 without first knowing what such an examination would reveal.”). The Supreme Court has 6 rejected “the attempt to justify [a] limited investigation as reflecting a tactical judgment.” 7 Wiggins v. Smith, 539 U.S. 510, 527–28 (2003) (holding that a state court opinion unreasonably 8 applied the Strickland standard where the state court merely assumed the investigation underlying 9 the alleged strategic decision was adequate, whereas the evidence demonstrated it was not 10 adequate); see also Williams v. Taylor, 529 U.S. 362, 396 (2000) (holding that the failure to 11 uncover mitigating evidence was “not justified by a tactical decision” where counsel “did not 12 fulfill their obligation to conduct a thorough investigation of the defendant’s background”).4 13 3 In his objections, respondent argues that the findings and recommendations distort the Ninth 14 Circuit’s holding in Weeden. (Doc. No. 24 at 35.) The Ninth Circuit in its decision in Weeden 15 stated that “[t]he correct inquiry is not whether psychological evidence would have supported a preconceived trial strategy, but whether Weeden’s counsel had a duty to investigate such 16 evidence in order to form a trial strategy, considering ‘all the circumstances.’” Weeden, 854 F.3d at 1070 (quoting Strickland, 466 U.S. at 691). Respondent contends that the findings and 17 recommendations’ “analyses bend this requirement into forcing counsel to perform a thorough investigation into a defense before he can even determine whether he must choose the defense for 18 trial. That is incorrect, especially in light of the Supreme Court’s recognition that it can be 19 reasonable not to investigate.” (Doc. No. 24 at 35.) However, in Strickland, the Supreme Court made clear that “counsel has a duty to make reasonable investigations or to make a reasonable 20 decision that makes particular investigations unnecessary.” 466 U.S. at 691. As explained in the findings and recommendations, petitioner’s counsel did neither. 21 4 Respondent argues that the findings and recommendations misinterpret the Supreme Court’s 22 decision in Williams by suggesting that “counsel must conduct a ‘thorough investigation’ before a 23 decision can be considered strategic under Strickland.” (Doc. No. 24 at 31) (citations omitted). According to respondent, the Supreme Court in its decision in Williams did not require a thorough 24 investigation in all cases but only found it unreasonable, given the specific circumstances in that case, for counsel to have failed to investigate the defendant’s background. (Id.) Respondent 25 contends that the findings and recommendations’ contrary standard led to flawed conclusions. (Id.) However, as noted in the findings and recommendations, defense counsel in this case was 26 aware of PTSD, petitioner’s law enforcement background, and that he attempted suicide 27 immediately after the shooting. (Doc. No. 23 at 20.) Respondent’s objections fail to explain why these circumstances did not require defense counsel to seek a psychological evaluation of 28 petitioner even under Williams. 1 Respondent argues that the findings and recommendations improperly establish a rule 2 requiring a minimum level of investigation before counsel can decide not to pursue a defense. 3 (Doc. No. 24 at 30.) However, that argument is misplaced. Rather than establishing a blanket 4 rule, the findings and recommendations merely emphasize that, given the specific facts of this 5 case, defense counsel had an obligation to seek a psychological evaluation. (Doc. No. 23 at 20– 6 22.) 7 B. Respondent’s Objections as to Prejudice 8 In the findings and recommendations, the magistrate judge stated that she could “identify 9 no rationale that would reasonably support the California Supreme Court’s finding that petitioner 10 failed to present a prima facie case of prejudice from trial counsel’s error.” (Doc. No. 23 at 22.) 11 In the alternative analysis reviewing the superior court’s decision, the magistrate judge found that 12 “the Superior Court’s prejudice methodology was both contrary to and [was] an unreasonable 13 application of Strickland.” (Id. at 25.) 14 In his objections, respondent argues that a fair-minded jurist could find that it was not 15 reasonably probable that an in-person mental health evaluation would have yielded a different 16 result. (Doc. No. 24 at 16–17.) Respondent argues that petitioner did not prove that it was 17 reasonably probable that: (1) Dr. Roeder would have diagnosed petitioner as suffering with 18 PTSD before the trial; (2) counsel would have presented that theory to the jury; or (3) the jury 19 would have believed that theory and not voted unanimously to convict petitioner of murder. (Id. 20 at 22–23.) The court addresses each of these arguments in turn. 21 First, respondent argues in his objections that “[b]ecause petitioner did not present Roeder 22 as a post-trial witness, he was forced to prove that Roeder would have diagnosed PTSD by 23 proving every reasonable mental health professional would have diagnosed PTSD.” (Doc. No. 24 24 at 23.) Respondent contends that petitioner did not do so, noting that “[t]he state superior court 25 found Berg’s conclusions to be overstatement given the number of CDCR mental health 26 professionals who did not diagnose petitioner with PTSD.” (Id.) Thus, respondent objects to the 27 magistrate judge’s conclusion that the superior court’s fact-finding process was unreasonable 28 because the superior court excluded the opinions appearing in the CDCR medical records but then 1 relied on those same opinions to conclude that it was impossible to predict what diagnosis would 2 have been arrived at if petitioner had been psychologically evaluated in 2011. (Doc. No. 23 at 3 27–28; see also id. at 27 (emphasizing that those mental health records were not admitted into 4 evidence for the mental health professionals’ opinions contained therein)). The undersigned 5 agrees with the findings and recommendations because the superior court employed an ineffective 6 factfinding process in relying on evidence it had previously ruled was inadmissible in finding that 7 petitioner had not met his burden of establishing he would have been diagnosed with PTSD in 8 2011.5 See Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004), abrogation on other grounds 9 recognized by Murray v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014). Also, as the pending 10 findings and recommendations highlight, the superior court’s approach ignored the only mental 11 health expert evidence in the record, that from Dr. Paul S.D. Berg, who stated that the variation in 12 PTSD diagnoses in the CDCR records did not undermine his assessment of petitioner. (Doc. No. 13 23 at 28); see Taylor, 366 F.3d at 1001 (“[A]s the Supreme Court noted in Miller-El, the state- 14 court fact-finding process is undermined where the state court has before it, yet apparently 15 ignores, evidence that supports petitioner’s claim.”) (citing Miller-El v. Cockrell, 537 U.S. 322, 16 340 (2003)). 17 Second, respondent argues that even if a mental health expert had diagnosed petitioner 18 with PTSD, trial counsel would have not presented this evidence at trial because an imperfect 19 self-defense theory would have conflicted with the primary defense of perfect self-defense. (Doc. 20 No. 24 at 24.) This argument is unpersuasive. The undersigned again finds that respondent fails 21 to explain why PTSD evidence would be incompatible with a perfect self-defense theory. Those 22 defenses were not inconsistent in any way. Moreover, petitioner’s trial counsel explicitly stated 23 that he intended argue both perfect and imperfect self-defense as “alternate theories,” and at trial 24 he sought to admit petitioner’s prior police training to support both his imperfect and perfect self-

25 5 Respondent construes the superior court’s reliance on the opinions in the CDCR medical records as a state court determination on a state law question and argues that it is therefore 26 inappropriate for this court to reexamine the issue. (Doc. No. 24 at 40.) Respondent’s argument 27 in this regard is unavailing because the issue here is not a state law question but concerns the superior court’s faulty factfinding process in using its own unsupported opinion rather than 28 relying on any evidence in the record. 1 defense theories. (Doc. No. 31 at 23–25.) This further undermines respondent’s contention that 2 these defense theories were mutually exclusive. Trial counsel’s focus on presenting evidence of 3 the petitioner’s police training and experience was ultimately rejected by the court, which deemed 4 such evidence to be irrelevant, as the case involved a personal dispute rather than an officer- 5 involved shooting. (Id. at 24.) Thus, while respondent contends that “[c]ounsel’s extremely mild 6 treatment of the alternate-theory instructions indicates counsel would not have wanted to present 7 evidence that would have severely undermined (if not fatally) his primary defense seeking 8 acquittal,” (Doc. No. 24 at 36), it appears that this mild treatment was due to the trial court’s 9 rejection of his prior police training evidence to support imperfect self-defense, rather than a 10 strategic decision by counsel based on the alleged incompatibility of perfect and imperfect self- 11 defense theories. 12 Third and finally, regarding the jury’s response to PTSD evidence, respondent argues that 13 petitioner could not establish whether the prosecutor would have presented a rebuttal witness or 14 whether the jury would have believed defense-friendly PTSD evidence. (Doc. No. 24 at 26.) On 15 this point, the findings and recommendations correctly explain as follows: 16 The court’s own inability to “predict” what rebuttal evidence the prosecution would have developed in response to a defense trial 17 expert is immaterial, and in any event does not weigh against relief. It is petitioner’s responsibility on an ineffective assistance claim to 18 show the evidence that a reasonable pretrial investigation would have uncovered. Petitioner met this burden of production by presenting 19 the opinions of Dr. Berg. The habeas evidentiary hearing was the opportunity for the prosecution to rebut Dr. Berg’s opinion with 20 competing expert opinion testimony if it wished to do so, and it did not avail itself of that opportunity. 21 22 (Doc. No. 23 at 26.) Importantly, Strickland does not permit the habeas court to reimagine the 23 entire trial. See Strickland, 466 U.S. at 695–96 (“Taking the unaffected findings as a given, and 24 taking due account of the effect of the errors on the remaining findings, a court making the 25 prejudice inquiry must ask if the defendant has met the burden of showing that the decision 26 reached would reasonably likely have been different absent the errors”); see also Hardy v. 27 Chappell, 849 F.3d 803, 823 (9th Cir. 2016) (“Strickland does not permit the court to reimagine 28 the entire trial. We must leave undisturbed the prosecution’s case. We only envision what [the 1 petitioner’s counsel] should have presented in [the petitioner’s] defense and determine how that 2 would have altered the trial. In doing so, we may not invent arguments the prosecution could 3 have made if it had known its theory of the case would be disproved.”). The undersigned 4 therefore concurs with the conclusions reached in the findings and recommendations that the 5 court’s own inability to predict what rebuttal evidence the prosecution would have developed in 6 response to a defense trial expert is immaterial and does not weigh against the granting of relief 7 and that there is a reasonable probability that the outcome of petitioner’s trial would have been 8 different had the jury been presented with expert evidence concerning petitioner’s mental health. 9 (See Doc. No. 23 at 26, 29–30.) Notably, “Dr. Berg’s testimony directly addressed the most 10 important issues that petitioner’s jury had to decide,” including whether petitioner killed Dumont 11 with malice, believed Dumont was retrieving a gun from his truck at the time petitioner shot him, 12 how petitioner could have believed there was a gun when there was evidence indicating there was 13 no gun found in the truck, and whether petitioner shot himself out of remorse for his own mistake 14 or to escape the consequences of deliberate murder. (Id. at 22.) 15 In sum, none of respondent’s objections provide a basis upon which to reject the findings 16 and recommendations. 17 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 18 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 19 including respondent’s objections and petitioner’s response thereto, the court finds the findings 20 and recommendations to be supported by the record and by proper analysis. 21 CONCLUSION 22 Accordingly: 23 1. The findings and recommendations issued on January 5, 2024 (Doc. No. 23) are 24 adopted; 25 2. The petition for writ of habeas corpus (Doc. No. 1) is granted with respect to 26 petitioner’s claim that he received ineffective assistance of counsel based on his 27 trial counsel’s failure to investigate and present mental health evidence (claim 28 one), and is otherwise denied; 1 3, Petitioner’s conviction for first-degree murder is vacated; 2 4. Respondent is directed to release petitioner from custody unless the State of 3 California commences a new trial within ninety (90) days from the date judgment 4 is entered absent further order of the court; and 5 5. The Clerk of Court is directed to close this case. 6 IT IS SO ORDERED. "| Dated: _ September 4, 2024 Dab A. 2, sxe 8 DALE A. DROZD 9 UNITED STATES DISTRICT JUDGE

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