Villagrana v. Gomez

120 F. App'x 51

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 10, 2005
• Docket: No. 03-56741; D.C. No. CV-95-07691-DDP
• Status: Published

Opinions

MEMORANDUM

*

Ambrosio Villagrana appeals the district court’s denial of his habeas petition filed pursuant to 28 U.S.C. § 2254. Villagrana challenges his state court conviction of first degree murder with personal use of a firearm on the ground that he was denied his Sixth Amendment right to effective assistance of counsel. Following an evidentiary hearing, the assigned magistrate judge issued a report and recommendation that the district court deny the petition. Subsequently, the district court adopted the magistrate’s recommendation and denied Villagrana’s petition. This court granted a certificate of appealability on the issue of whether trial counsel rendered ineffective assistance under the Sixth Amendment for failing to investigate and present three potential defense witnesses. We have jurisdiction under 28 U.S.C. § 1291 and § 2253 and we affirm.¹

We review de novo the denial of a habeas petition filed pursuant to 28 U.S.C. § 2254. Leavitt v. Arave, 383 F.3d 809, 815 (9th Cir.2004).² “In particular, claims alleging ineffective assistance of counsel are mixed questions of law and fact and are reviewed de novo. To the extent it is necessary to review findings of fact made in the district court, the clearly erroneous standard applies.” Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.), cert. denied, 537 U.S. 942, 123 S.Ct. 342, 154 L.Ed.2d 249 (2002) (citations omitted).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth a two-part test under which ineffective assistance of counsel claims are analyzed. The defendant first must show that the performance of counsel 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.” Id. at 687. At the second stage, the defendant must show that he was prejudiced by the deficient performance. “This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is rehable.” Id.

Villagrana challenges his trial counsel’s failure to investigate adequately and present three potential defense witnesses, Chacon, Suarez, and Tapia. “A lawyer who fails adequately to investigate, and to introduce into evidence, records that demonstrate his client’s factual innocence, or that raise sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance.” Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir.1999).

Even assuming that Villagrana’s trial counsel’s performance was deficient, Villagrana did not suffer prejudice. To establish prejudice, Villagrana must show “that there [was] 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. Although “ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the [State]’s case[,]” Eggleston v. United States, 798 F.2d 374, 376 (9th Cir.1986), Villagrana is unable to establish that there is a reasonable probability that but for the failure to investigate and present the three witnesses, the result of the trial would have been different. See Strickland, 466 U.S. at 694.

As Chacon testified, he was not a percipient witness to the events in the alley. At best, he could only testify to what he heard as he was taking a shower. Given the tangential nature of the testimony he offered, his testimony would not have undermined the evidence offered by the State. Similarly, although there was evidence that Tapia and Suarez heard shots in the alley and that they would have testified that they saw a red Blazer exit the alley after the shots, their testimony would not have contradicted or undermined the prosecution’s case. Unlike those cases in which we have found that the deficient performance was prejudicial, here, the additional witnesses would not have provided Villagrana with an alibi or exonerating evidence. See, e.g., Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir.1994) (holding that the failure to investigate and present the confession of a third party deprived defendant “of the most critical evidence supporting his best defense”); Brown v. Myers, 137 F.3d 1154, 1157-58 (9th Cir.1998) (holding that the failure to interview and present alibi witnesses who would have supported the defendant’s version of events was prejudicial); Luna v. Cambra, 306 F.3d 954, 961-66 (9th Cir.) (holding that the failure to interview and present alibi witnesses and to admit a third party out-of-court confession to the crime was prejudicial), amended by 311 F.3d 928 (9th Cir.2002).

Although the State did not present eyewitness testimony of the shooting, it presented powerful circumstantial evidence, including Villagrana’s father-in-law’s statements to the police regarding Villagrana’s conduct and statements immediately before and after the murder. As the record reflects, Villagrana’s father-in-law attempted to distance himself from these statements. However, we must assume that the jury credited his original statements. As a result, there is not a reasonable probability that the presentation of the three witnesses would have altered the jury’s verdict. Thus, even assuming that Villagrana’s trial counsel’s performance was deficient, Villagrana did not suffer any prejudice.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rulé 36-3.

1 . Because the parties are familiar with the facts of the case, we recite them only as necessary to explain our disposition.

2 . Villagrana filed his habeas petition on November 9, 1995, before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA”), Pub.L. 104-132, 110 Stat. 1214. Therefore, the amendments in the AEDPA are not applicable here. See Lindh v. Murphy, 521 U.S. 320, 322-23, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).