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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 RONALD GILLION, Case No. LACV 18-3004-SB (LAL) 11 Petitioner, ORDER ACCEPTING REPORT AND

RECOMMENDATION OF UNITED

12 v. STATES MAGISTRATE JUDGE 13 DEBBIE ASUNCION, Warden, 14 Respondent. 15 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge’s 18 Report and Recommendation, Petitioner’s Objections and the remaining record, and has made a 19 de novo determination. The Court approves and accepts the Report and Recommendation and 20 finds that Petitioner’s Objections generally lack merit. This Order contains additional support 21 for the Court’s determination on the issue of ineffective assistance of counsel. 22 DISCUSSION 23 Petitioner claims that he was deprived of his Sixth Amendment right to effective 24 assistance of counsel when his lawyer failed to call an eyewitness, Latisha Adkins, at trial. 25 Under Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner who makes this 26 constitutional claim must show deficient performance resulting in prejudice. In this case, the 27 state trial court assumed deficient performance and summarily denied the habeas petition for lack 1 Antiterrorism and Effective Death Penalty Act (“AEDPA”), federal relief cannot be granted here. 2 Harrington v. Richter, 562 U.S. 86, 105 (2011); see also Shinn v. Kayer, No. 19-1302, 2020 WL 3 7327827, at *4 (U.S. Dec. 14, 2020) (reaffirming the deferential standard of review). 4 But even if the state court erred in finding no prejudice, the petitioner would not be 5 entitled to relief if he failed to show deficient performance. See Rompilla v. Beard, 545 U.S. 6 374, 390 (2005) (finding that the state court erred in failing to find deficient performance but 7 denying relief for lack of prejudice). Because the state court did not reach this issue, this Court 8 considers it de novo. See id.; see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (“[W]e 9 may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, 10 we must decide the habeas petition by considering de novo the constitutional issues raised.”). 11 The starting point in evaluating a claim of ineffective assistance of counsel is a “strong 12 presumption” that counsel’s performance was within an acceptable range of professional 13 competence. Strickland, 466 U.S. at 689; see also id. at 690 (emphasizing that “counsel is 14 strongly presumed to have rendered adequate assistance and made all significant decisions in the 15 exercise of reasonable professional judgment”). A petitioner who challenges counsel’s 16 performance bears the burden of overcoming the presumption that the challenged action or 17 omission was the product of “sound trial strategy.” Id. at 689 (internal quotation omitted). 18 The question here is whether Petitioner satisfied his burden. In analyzing this issue, it is 19 important to properly identify the type of deficiency being claimed. Petitioner attempts to cast 20 his claim primarily as a failure to investigate. (Dkt. No. 2, Fed. Habeas Pet. at 23-25.) But he 21 has presented no evidence that his trial counsel was unaware that Adkins was a potential 22 witness—and on this record he reasonably could not make such a claim. Adkins provided a 23 statement to the police, which was provided to defense counsel (Dkt. No. 11-7, State Habeas 24 Pet., Ex. 3 at 3-4); and the prosecution identified Adkins on its witness list (State Habeas Pet., 25 Ex. 8, Gillion Decl. ¶ 2). Moreover, Jackie Thigpen testified at trial that Adkins was present 26 with her at the scene of the shooting. (Dkt. No. 11-18, Rep. Tr., Vol. 2, at 410:4-412:1.) 27 To conclude that Petitioner’s trial counsel was unaware of Adkins would require a 1 report, failing to review the prosecution’s witness list, failing to listen to Thigpen’s trial 2 testimony, and failing to conduct any meaningful investigation. No evidence of such wholesale 3 dereliction is found in Petitioner’s declaration. Petitioner does not state that his trial counsel: 4 (i) neglected to investigate the facts when interviewing him; (ii) failed to hire an investigator to 5 interview witnesses, including Adkins; (iii) failed to provide him with police reports (or read 6 them to him); (iv) failed to follow up on any leads Petitioner suggested; or (v) appeared to be 7 unprepared and made serious mistakes at trial. 8 Instead, Petitioner suggests—without directly stating—that he only learned about Adkins 9 as a potential witness after his conviction was affirmed and after he spent two months studying 10 the record: 11 My court of appeal decision was issued on October 23, 2015, and the petition for 12 review was denied on January 13, 2016. About two months later I received my 13 appellate court file from my attorney. I read and studied my appellate court file 14 for about two months. I noticed Latisha Adkins[’s] name on the witness list but 15 she was never called as a witness. I also found Adkins[’s] police report with her 16 eyewitness testimony about the shooter. Thereafter, I started a phone call and 17 letter writing campaign to seek help with this evidence. . . . 18 (State Habeas Pet., Gillion Decl. ¶ 2.) 19 The record contradicts any suggestion that Petitioner only learned about Adkins as a 20 potential witness after his appeal. Like his trial counsel, Petitioner knew that Adkins was at the 21 scene of the shooting, as he too had heard Thigpen testify at length that she was with Adkins at 22 the time; and Petitioner himself appeared to testify that he knew Adkins was there when he 23 arrived at the scene (Dkt. No. 11-19, Rep. Tr., Vol. 3, at 973:23-26).1 Thus, Petitioner has not 24 shown that his trial counsel failed to investigate by not calling Adkins as a witness.

25 26 1 The record also suggests that Petitioner knew about the contents of police reports. While Petitioner did not testify that he saw the specific report containing Adkins’ statement, it is clear 27 from his testimony that he knew the contents of at least some of the police reports. (See Dkt. No. 11-19, Rep. Tr., Vol. 3, at 977:20-27 (correcting the prosecutor about the contents of a report 1 The real question is whether counsel was deficient in failing to call a known witness. The 2 failure to call a witness—even one who purports to provide favorable evidence—is not, by itself, 3 evidence of deficiency. The decision whether to call a witness is a strategic one. Schroeder v. 4 Premo, 712 F. App’x 634, 637 (9th Cir. 2017). Any competent trial lawyer knows that calling 5 witnesses may “backfire.” Id. An evaluation must be made whether the testimony on balance 6 will be beneficial or harmful—which often depends on a lawyer’s assessment of witness 7 credibility. This was the decision confronting Petitioner’s counsel. Calling Adkins could bolster 8 the defense—or backfire—depending on whether the jury found her credible. The strategic 9 decision was complicated by the fact that Petitioner elected to testify at trial. Counsel had to 10 consider whether his client’s testimony would be sufficient to create reasonable doubt and 11 whether Adkins’s testimony might bolster or undermine Petitioner’s testimony. 12 Once the issue is properly framed, the Strickland analysis is clear. There is a “strong 13 presumption” that Petitioner’s counsel made a reasonable strategic decision not to call Adkins. 14 To overcome this presumption, it was incumbent upon Petitioner to demonstrate that his counsel 15 neglected to make an informed decision by failing to interview Adkins to allow him to evaluate 16 her credibility. Petitioner failed to satisfy this burden. Adkins does not state in her declaration 17 that defense counsel neglected to interview her. In fact, she states that she “was interviewed by 18 the police and someone else who I cannot recall.” (State Habeas Pet., Ex. 1, Adkins Decl. ¶ 6 19 (emphasis added).2 This statement is ambiguous: it is not clear if Adkins does not recall the 20 name of the interviewer or if she does not recall on whose behalf the interviewer was acting (or 21 both). Whether accidental or purposeful, this ambiguity does not assist Petitioner because he 22 unambiguously has the burden—and he has not shown that his trial counsel, or a defense 23 investigator, did not interview Adkins. 24 Petitioner’s own declaration fares no better. On the contrary, the declaration raises 25 serious questions that Petitioner reasonably could be expected to have addressed. The most 26

27 2 Adkins also stated that she was “subpoenaed to court but never testified.” (Adkins Decl. ¶ 6.) 1 glaring omission is his failure to disclose whether he spoke with his trial counsel about Adkins. 2 As discussed, he does not provide any evidence that his lawyer wholly failed to investigate the 3 case or communicate with him about it. It is therefore reasonable to expect that his lawyer would 4 have discussed the potential witnesses with him, including Adkins. And even if his lawyer 5 neglected to do so (which he does not state), Petitioner does not explain why he did not raise this 6 issue with his lawyer—at least by the time he heard Thigpen testify that she and Adkins were at 7 the scene together when the shooting occurred.3 8 Petitioner, therefore, failed to carry his burden. See Strickland, 466 U.S. at 691 (noting 9 that “inquiry into counsel’s conversations with the defendant may be critical to a proper 10 assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment 11 of counsel’s other litigation decisions”). This is not a case in which a petitioner would have no 12 way of rebutting the presumption because only his trial counsel knows the relevant information. 13 Petitioner had the ability to rebut the presumption by showing through Adkins’s declaration that 14 his trial counsel failed to have her interviewed—if that were the case. Instead, Petitioner offered 15 ambiguity about whether the defense had interviewed her. Petitioner also had the ability to 16 declare that he and his trial counsel never spoke about whether to call Adkins as a witness—if 17 that were the case. Instead, Petitioner submitted a declaration that misleadingly suggests, 18 without directly stating, that he was unaware of Adkins as a potential witness until after his 19 appeal. 20 More is required to overcome the strong presumption of effective performance than 21 reliance on omission and ambiguity, especially when more is readily available. Id.; see 22 Matylinsky v. Budge, 577 F.3d 1083, 1092 (9th Cir. 2009) (concluding that petitioner failed to 23 satisfy his “heavy burden” of showing that his trial counsel was “unreasonable or ineffective in 24 selecting his chosen trial strategy”); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) 25 3 Even if Petitioner did not know if Adkins had seen the shooting, he would have had every 26 incentive to ask whether Adkins could corroborate other key details of his account of the events. 27 For instance, Petitioner testified at trial that he saw Davis lift his hand up with a bottle as if he were about to strike someone, at which time he saw a man pull a gun from his waist or pocket. 1 (concluding that petitioner failed to satisfy his burden by not presenting reasonably available 2 evidence); see also Schneider v. MacDonald, No. C 10-05753 WHA, 2012 WL 104636, at *8 3 (N.D. Cal. Jan. 12, 2012) (finding that “petitioner who bears the burden of proof on 4 an ineffective assistance of counsel claim could have put forward a declaration to provide 5 additional clarity on these issues”).4 6 Accordingly, Petitioner has failed to demonstrate that his trial lawyer rendered ineffective 7 assistance of counsel in violation of Petitioner’s constitutional rights. 8 The Clerk is to serve copies of this Order on the parties. 9

10 DATED: December 14, 2020 ________________________________________ 11 STANLEY BLUMENFELD, JR.

UNITED STATES DISTRICT JUDGE

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24 4 Petitioner suggests that his lawyer should have called Adkins even if she could be expected to 25 recant her statements to the police at trial because that would have made her no different than the prosecution witnesses who testified. (Fed. Habeas Pet. at 28.) But strategic decisions about 26 whether to call a witness are not that simplistic: trial counsel had to consider, among other things, whether he could provide a credible explanation for her recanting and how her testimony 27 might be perceived in the totality of the evidence. Recognizing the ease of hindsight analysis,