Charles R. Tomlin v. E. Myers, Superintendent

Opinion by Judge KOZINSKI; Dissent by Judge GEORGE.

In this state habeas appeal, we consider whether petitioner was represented by constitutionally deficient counsel.

I

Sixteen years ago, Charles Tomlin was convicted of first degree murder for shooting *1237 Daniel Stewart during a drug deal gone bad. Stewart and his girlfriend, Laura Leticia Mendez, had arranged to sell nine pounds of marijuana through an intermediary, Charles Tillman. On the night the sale was to take place, everything seemed to go according to plan until Tillman directed Stewart and Mendez to an alley and got out of their truck, promising to return with the money. Seconds later, an armed man got into the truck and directed Stewart, who was at the wheel, to drive. The assailant soon fired his gun in Stewart’s direction to get him to comply, which Stewart did, and then robbed them each of a few dollars and ordered Stewart to drive down an alley. When Stewart refused and appeared to reach for a weapon, the man shot Stewart in the head, grabbed the drugs and fled.

Mendez, who was unharmed, immediately provided a description of the assailant to police: a black man, approximately twenty-five years old; about five…

dissenting:

I.

Some fifteen years ago, petitioner’s trial counsel, an attorney with approximately thirty years of active, continual, criminal experience, and who by that point had been involved in approximately 175 other murder cases, became counsel in this one. Petitioner, Charles Ray Tomlin, had been charged with the shooting death of Daniel Stewart during a hold-up in connection with a drug deal. Two other individuals were acquainted ■with some of the events that took place that evening. One, Laura Leticia Mendez, was sitting in the pickup truck between the assailant and Stewart when the assailant shot Stewart in the head. The other, Charles Tillman, had acted as an intermediary during the drug transaction, and had exited the truck moments before the assailant’s arrival. Tillman had been arrested, and was later convicted of murder and robbery for his participation in the crime.

Tomlin’s trial counsel knew that the prosecution intended to use Mendez as a witness against Tomlin at trial. He had listened to Mendez testify in detail at the preliminary hearing about Tillman’s involvement in the incident, and had cross-examined her at length regarding her identifications of his…

30 F.3d 1235 Charles R. TOMLIN, Petitioner-Appellant, v. E. MYERS, Superintendent, Respondent-Appellee. No. 93-15247. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 3, 1993. Decided July 28, 1994. Gerson S. Horn, William S. Pitman, Law Offices of Gerson S. Horn, Beverly Hills, CA, for petitioner-appellant. Janet Bangle, Deputy Atty. Gen., Sacramento, CA, for respondent-appellee. Appeal from the United States District Court for the Eastern District of California. Before: KOZINSKI and O'SCANNLAIN, Circuit Judges, and GEORGE, District Judge. * Opinion by Judge KOZINSKI; Dissent by Judge GEORGE. KOZINSKI, Circuit Judge. 1 In this state habeas appeal, we consider whether petitioner was represented by constitutionally deficient counsel. 2 * Sixteen years ago, Charles Tomlin was convicted of first degree murder for shooting Daniel Stewart during a drug deal gone bad. Stewart and his girlfriend, Laura Leticia Mendez, had arranged to sell nine pounds of marijuana through an intermediary, Charles Tillman. On the night the sale was to take place, everything seemed to go according to plan until Tillman directed Stewart and Mendez to an alley and got out of their…