UNITED STATES of America, Plaintiff-Appellee, v. Calvin THOMAS, Defendant-Appellant.
No. 03-56750.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 7, 2005. Filed Aug. 3, 2005.
422 F.3d 1053
In light of Saffold‘s and Delhomme‘s unequivocal pronouncements, it is difficult to comprehend the panel majority‘s declaration that it is “aware of no case suggesting that the filing of a redundant petition, which is denied immediately, deprives a petitioner of the right to interval tolling.” 417 F.3d at 1045. Indeed, Saffold and Delhomme do more than “suggest[]” that tolling is unavailable during such an interval; they compel that result.
III
Future panels that consider whether a California petitioner is entitled to interval tolling will now be forced to choose between two irreconcilable lines of precedent. Inevitably, some panels will follow Gaston and hold that interval tolling is available when a petitioner refiles in the same level of the state court system; others will adhere to Saffold and Delhomme and hold that tolling is not permitted under such circumstances.
Rather than condone a decision that sows uncertainty and that fosters a conflict with Supreme Court precedent, we should have reheard this case en banc, and I respectfully dissent from our refusal to do so.
Alka Sagar, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee the United States.
RYMER, Circuit Judge:
Calvin Thomas appeals the denial of his
I
Two robberies occurred on consecutive days in February 1996, the first of United California Savings Bank in Riverside, and the second of a United Parcel Service (UPS) office in Riverside. Three African-American males driving a blue Suzuki Samurai were involved in both. FBI Agent Mark Enyeart happened to be driving by the UPS office when the three men emerged from robbing that facility; he saw them, thought they looked suspicious, and followed the Suzuki. The robber in the back opened the rear flap and fired shots at Enyeart. A high speed chase ended up at the house of Cynthia Wright, an acquaintance of Thomas. Eventually the robbers were driven out of the house, and were identified as Thomas, Zelos Fields, and Reginald Paris. They left behind a 9-millimeter pistol and $800 inside a sock. Forensic testing matched the gun with shell сasings found on the street where the shots were fired at Enyeart.
Indictments were returned against Thomas, Fields and Paris. Paris pled guilty and agreed to testify against Thomas and Fields, who were tried together. In his opening statement as well as in closing argument, Thomas‘s counsel, John Aquilina, indicated that he was not contesting Thomas‘s participation in the UPS robbery. Although Aquilina recalls having told Thomas that he intended to focus on the other charges, he does not remember consulting with Thomas or obtaining his consent to concede.
At trial, Paris testified that he drove a blue Suzuki Samurai to pick up Fields and Thomas before both robberies. Thomas showed him the 9-millimeter pistol, which Fields gave Paris to use to control people inside the facilities. A customer at the bank identified Thomas as one of the robbers who jumped over the counter to get money from the tellers, and a bystander also identified him and Fields, describing Thomas accurately as shorter and lighter-skinned. After leaving the UPS office, Thomas dropped some of the money, which he bent down to pick up. Paris testified that Thomas sat in the front seat of the Suzuki and Fields in the back. A UPS customer identified Thomas as one of the robbers; a bystаnder testified that the man who was noticeably shorter and younger looking than the other two, with shorter hair, got into the back and was looking down the street as the Suzuki drove off. This description matches Thomas‘s appearance.
The jury found Thomas guilty on all six counts. He appealed both his conviction and sentence. We affirmed the conviction, but remanded for resentencing which we later upheld.
Thomas then filed a
Thomas has timely appealed.
II
A
Ineffective assistance of counsel claims are governed by the familiar, two-part test of Strickland under which a defendant must show that counsel‘s representation fell below an objective standаrd of reasonableness, and that any deficiencies in counsel‘s performance were prejudicial. Strickland, 466 U.S. at 688, 690, 692, 104 S.Ct. 2052. Both deficient performance and prejudice are required before it can be said that a conviction (or sentence) “resulted from a breakdown in the adversary process that render[ed] the result [of the proceeding] unreliable” and thus in violation of the Sixth Amеndment. Id. at 687, 104 S.Ct. 2052.
In this case, we assume that counsel‘s concession of guilt without consultation or consent is deficient.1 See Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 560, 561, 160 L.Ed.2d 565 (2004) (observing that “[a]n attorney undoubtedly has a duty to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy,” and that counsel was obliged to explain proposed trial strategy to the defendant) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052); Strickland, 466 U.S. at 688, 104 S.Ct. 2052 (noting counsel‘s duty to consult with the defendant on important decisions). The question is whether Thomas was prejudiced, presumptively or actually.
To prevail on Strickland‘s prejudice prong, there must be “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.” Id. at 694, 104 S.Ct. 2052. Ordinarily prejudice must bе proved, but it is presumed in limited circumstances that are “so likely
The Supreme Court has twice revisited Cronic in ways that shed light on Thomas‘s claim. First, in Bell v. Cone, 535 U.S. 685, 697, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), the Court emphasized that Cronic‘s exception for failing to test the prosecution‘s case applies when the attorney‘s failure to oppose the prosecution goes to the proceeding as a whole—not when the failure occurs only at specific points in the trial.2 Then, in Florida v. Nixon, the Court considered a situation very similar to Thomas‘s. Nixon‘s counsel made a strategic decision to concede Nixon‘s commission of murder in the guilt phase of a capital case, and to concentrate the defense on saving Nixon‘s life in the penalty phase. There was overwhelming evidence that Nixon had committed the murder. Counsel tried to explain his strategy to Nixon, but Nixon was unresponsive and neither approved nor disapproved it. The Florida Supreme Court thought that counsel‘s concession was the “‘functional equivalent of a guilty plea’ in that it allowed the prosecution‘s guilt-phase case to proceed essentially without opposition,” and thus held that it made counsel‘s performance presumptively inadequate without the dеfendant‘s affirmative acceptance. Nixon, 125 S.Ct. at 559 (quoting Nixon v. Singletary, 758 So.2d 618, 622-24 (Fla. 2000)). The United States Supreme Court disagreed with the premise that counsel‘s trial concession was the same as a guilty plea. It explained that despite counsel‘s concession, Nixon still had the rights to which he was entitled at trial—to have the prosecution prove the elements of the offense beyond a reasonable doubt by competent, admissible evidence; to cross-examine witnesses; to exclude prejudicial evidence; and to appeal evidentiary or instructional errors. Id. at 560-61. Having determined that counsel‘s concession strategy was not the functional equivalent of a guilty plea, the Court held that the Florida court‘s contrary conclusion led it mistakenly to apply the presumption of prejudice that Cronic “reserved for situations in which counsel has entirely failed to function as the client‘s advocate.” Id. at 561.
Thomas argues that Nixon is distinguishable based on the Court‘s statement that “[a]lthough such a concession [of guilt] in a run-of-the-mine trial might present a closer question, the gravity of the potential sentence in a capital trial and the proceeding‘s two-phase structure vitally af-
Thomas also relies on our opinion in United States v. Swanson, 943 F.2d 1070 (9th Cir. 1991), which was a bank robbery case in which counsel argued that the evidence against the defendant was overwhelming and that he was not going to insult the jurors’ intelligence by trying to raise a reasonable doubt about whether Swanson had perpetrated the robbery or whether intimidation was proved. Id. at 1071, 1074. There, we applied Cronic because counsel‘s concession concerned the only factual issues in dispute on the only count that was charged. Id. at 1074. The government had also failed to identify any strategy that could justify counsel‘s betrayal of his client. Id. at 1075. Unlike Swanson, Thomas was tried on multiple counts, and counsel decided to focus on the charges on which Thomas had a chance. As we recognized in Swanson, “in some cases a trial attorney may find it advantageous to his client‘s interests to concede certain elements of an offense or his guilt of one of several charges.” Id. at 1075-76; see also Anderson v. Calderon, 232 F.3d 1053, 1087-90 (9th Cir. 2000) (holding that Swanson and Cronic‘s presumption of prejudice does not apply where trial counsel conceded that defendant murdered the victim but asked the jury to convict him of first-degree murder rather than felony murder in order to avoid eligibility for the dеath penalty), overruled on other grounds by Osband v. Woodford, 290 F.3d 1036 (9th Cir. 2002); United States v. Holman, 314 F.3d 837, 839 n. 1, 840-41 (7th Cir. 2002) (holding that trial counsel‘s concession of defendant‘s guilt to one of several charges in order to enhance his credibility in arguing against conviction on other charges is a reasonable trial strategy and not susceptible to Cronic‘s presumed prejudice analysis). As the district court found, this is such a case.
In sum, there is no suggestion that Aquilina did not fully and carefully prepare Thomas‘s defense. He had a sensible reason for not contesting Thomas‘s participation in the UPS robbery: it was, for all practical purposes, incontestible, and he believed that doing so would enhance his credibility on counts where the evidence was somewhat less clear and the penalties significantly greater.4 Given the multiple
B
Thomas argues that even if Strickland applies, his counsel‘s performance was prejudicial for two reasons. First, he maintains there was conflict among witnesses other than Enyеart and Paris as to whether Thomas was present during the UPS robbery. Any such conflict is immaterial, however, given Enyeart‘s testimony that he followed Thomas (whom he identified as the robber who got into the rear of the blue Suzuki) to Wright‘s apartment, from which Thomas subsequently emerged with the other two robbers.
Second, Thomas suggests that Aquilina‘s concession that he participated in the UPS robbery effectively conceded his participation in both robberies given percipient witness testimony that each robbery was perpetrated by black males and Paris‘s testimony that the same two persons accompanied him during both robberies. Paris was severely impeached, however, and there was inconsistency among the witnesses as to how many robbers were present at the UPS office аnd who was present at the bank. In any event, there is no reasonable probability that, had Aquilina not failed to contest Thomas‘s participation in the UPS robbery, the jury would not have convicted him of the remaining charges. Witnesses testified that Thomas stood out from the other two bank robbers because he was noticeably shorter and had lighter skin and shorter hair; Enyeart testified that Thomas was thе UPS robber who shot at him; and there was evidence that Thomas handed Paris the firearm that Paris carried in both robberies, thus aiding and abetting its use. Accordingly, Thomas has not shown a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.
III
Thomas also asks us to certify as an issue for appeal whether Aquilina‘s concession of guilt to the UPS robbery denied him due process in violation of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). We decline to do so, as he cannot make a substantial showing of the denial of a constitutional right given Nixon. See
AFFIRMED.
B. FLETCHER, Circuit Judge, with whom FISHER, Circuit Judge, joins, concurring:
Our affirmance of Thomas‘s conviction should not be read as condoning his attorney‘s conduct in this case. On the contrary, Thomas‘s attorney abdicated one of
charged with aiding аnd abetting each of the firearms crimes, not with aiding and abetting the robberies.
While a carefully tailored concession can be a shrewd trial tactic in certain cases, it is entirely inappropriate for an attorney to make such a concession without prior discussion with the client. Consultation is vital not only to inform the client about his lawyer‘s proposed course of action, but also (more importantly) to provide the defendant with an opportunity to object to any contemplated concessions. In the ordinary representation, an attorney should obtain his client‘s express consent to a stratеgy conceding guilt (or any essential element thereof) on any charge or charges; in the unusual circumstance where consent is not possible (as in Nixon, where the defendant exhibited “constant resistance to answering inquiries put to him by counsel and court“), the attorney must at least consult the client in advance in order for the representation to satisfy the constitutional baseline of adequate advocacy. See Nixon, 125 S.Ct. at 561.
For purposes of evaluating Strickland‘s incompetence-of-counsel prong, we therefore must draw a firm line that any counsel who makes concessions of guilt not previously discussed with the client is incompetent. It is deficient performance for an attorney to concede his client‘s guilt without prior consultation with the client, even where the concession relatеs to one charge out of several, and even where evidence of guilt is strong.
Because Thomas has not satisfied the prejudice prong of the Strickland test, relief here is foreclosed. Nonetheless, it is worth noting that, like Nixon‘s attorney, counsel for Thomas “was obliged to explain his proposed trial strategy” to his client, 125 S.Ct. at 561; having failed to do so, the lawyer performed deficiently. With this understanding, I concur in Judge Rymer‘s opinion affirming the judgment.