Howard v. Clark, 608 F.3d 631 (9th Cir. 2010)

Stories about prisoners released from custody on the ground of alleged “factual innocence” are always heart-warming and sensitive. But establishing release from custody on grounds of “ineffective assistance of counsel” is a favorite alternative method of the 9th Circuit.  And “innocence” is not always established.   A twelve person jury found Howard guilty, but the 9th Circuit panel, having heard none of the testimony at trial, retried the case. The Howard case is another example of injustice to the public. As usual.

Howard was charged with murder of one man named Freeman and assault against another man named Ragland. This case was gang related, and those prosecutions are almost always difficult to prove for obvious reasons. But a liquor store employee (not a gang member), observed the shooting of the two men and unqualifiedly testified Howard as the culprit. The girlfriend of the murdered man also witnessed the shooting but was equivocal in her testimony. The defendant testified he was somewhere else.

The jurors, after hearing all the conflicting evidence, listening to the witnesses, and following the judge’s instruction, found Howard “guilty beyond a reasonable doubt.” The trial judge agreed and denied a motion for new trial. Howard appealed the verdict, and a three- judge state Court of Appeal affirmed the conviction, and rejected Howard’s assertion his attorney failed to call Ragland as a witness i.e, “ineffective assistance of counsel.”

The state supreme court denied review of the case. That should have been the end. Howard filed a petition for habeas corpus in Superior Court; denied. He filed the same petition in the Court of Appeal; denied. He failed file a petition for review in the Supreme Court foreclosing his opportunity to file certiorari in the U.S. Supreme Court. He filed a petition for habeas corpus in U.S. district court on the same ground of “ineffective assistance of counsel”; denied by a magistrate judge. The district court refused to give Howard a certificate of appealability, a document mandatorily required before seeking appeal. The 9th Circuit panel filed their own certificate, permitted the appeal, and ordered the district court to conduct an evidentiary hearing on the same ground of ineffective assistance of counsel.

A magistrate judge produced a record at the hearing to establish that a defense investigator and the DA office both tried to find Ragland but were unsuccessful. Despite this record, the magistrate judge found Ragland should have testified and counsel was ineffective in not locating him. The Magistrate judge recommended reversal and the district court judge agreed and reversed the conviction because Ragland had agreed that Howard had not shot him. The AG appealed to the 9th Circuit who accepted the magistrate’s findings.ount the number or people (jurors and judges) who heard this case before the 9th Circuit decision. This panel wondered why trial counsel (now deceased) did not use Ragland to testify.
The reasons: Ragland had 6 prior felony convictions and was on parole. A gang banger whose testimony at a trial would have been useless. Do you want that witness, who allegedly wrote a letter two years later denying Howard shot him, to testify ? Had it occurred to the 9th Circuit panel or the Magistrate judge, none of whom heard any of the evidence at trial, that Ragland’s testimony would have been told to his parole review board to demonstrate his excellent responsibility as a citizen?
No defense lawyer would have called a witness w ho would have been a joke to the jury. In identification cases the lawyers focus on the witness who inculpates the defendant. In this case, the liquor store employee would be intensely cross examined. And counsel would argue misidentification to the jury, particularly when the prosecution witness testified uncertainly.

Apparently the prosecutor did not think much of the defense when the case was returned from the 9th Circuit., and offered Howard retrial. Prosecutors know how difficult it is to retry a criminal case after 10 years. What they should have been done is seek review of the 9th Circuit decision in the Supreme Court.
Whether Howard is guilty is not the issue. Three federal judges on collateral review overturn the jurors, the trial judge, the California Court of Appeal, and the California Supreme Court on direct appeal of the verdict in state court. On habeas decisions, the 9th Circuit reverses the Superior Court, the three California Court of Appeal Justices (again) and the seven California Supreme Court Justices (again).