Free Odell Smith v. DERRAL G. ADAMS, Warden; ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREE ODELL SMITH,
Petitioner - Appellant,
v.
DERRAL G. ADAMS, Warden;
ATTORNEY GENERAL FOR THE
STATE OF CALIFORNIA,
Respondents - Appellees.
No. 10-17482
DC No. 2:07 cv-1462 GEB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted January 14, 2013
San Francisco, California
Before: NOONAN, TASHIMA, and GRABER, Circuit Judges.
Free Odell Smith appeals the district court’s denial of his petition for habeas
corpus relief pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C.
FILED
JAN 24 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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§§ 1291 and 2253. We review the district court’s denial of a habeas petition de
novo. DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009). We affirm.
1. The California Court of Appeal reasonably concluded that Smith’s
Sixth Amendment rights were not violated by the trial court’s decision not to
appoint new counsel at the pre-trial Marsden hearing. See People v. Marsden, 465
P.2d 44 (Cal. 1970). The Sixth Amendment does not guarantee a criminal
defendant a “meaningful relationship” with his attorney. Morris v. Slappy, 461
U.S. 1, 13 (1983). Indeed, “no Supreme Court case has held that ‘the Sixth
Amendment is violated when a defendant is represented by a lawyer free of actual
conflicts of interest, but with whom the defendant refuses to cooperate because of
dislike or distrust.’” Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008)
(quoting Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc)).
Here, there is no allegation that trial counsel had an actual conflict of
interest. Rather, Smith’s poor relationship with trial counsel was attributable to
their differing opinions as to trial strategy and Smith’s subjective distrust, neither
of which is a suitable ground for habeas relief. See Plumlee, 512 F.3d at 1210-11.
The trial court also conducted a thorough inquiry into Smith’s claim of a conflict,
foreclosing the possibility of relief on this ground. See id. at 1211.

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2. The state Court of Appeal reasonably concluded that Smith’s Sixth
Amendment rights were not violated by the trial court’s decision not to appoint
new counsel, post-trial, to pursue a motion for a new trial. With respect to the
sufficiency of the inquiry conducted, the trial court afforded Smith the opportunity
to set forth the reasons why he believed new counsel (and a new trial) was
warranted. To the extent that Smith claimed a conflict with counsel, Smith did not
offer any evidence of the alleged conflict that had not been fully explored during
the pre-trial Marsden hearing.
The allegations underlying Smith’s request for new counsel also did not, on
the merits, present a viable claim of ineffective assistance. The physical
description that the uncalled witness allegedly would have provided actually
matched Smith’s appearance a month following the shooting; therefore, that
witness’ testimony would only have harmed Smith’s case. As for the alleged
failure to reveal certain information concerning Scott Appleby, one of the State’s
witnesses, trial counsel had already impeached Appleby by introducing several of
his prior convictions at trial. The failure to take additional impeachment measures
did not present a colorable claim of deficient performance, or prejudice, under
Strickland v. Washington, 466 U.S. 668 (1984).

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3. The state Court of Appeal reasonably concluded that Smith’s rights
were not violated by the trial court’s refusal to grant a continuance at the
sentencing hearing. Trial courts are afforded broad discretion on matters of
continuances. Morris, 461 U.S. at 11. In assessing whether the denial of a
continuance was “so arbitrary as to violate due process,” we must look to the
circumstances of the given case, “particularly . . . the reasons presented to the trial
judge at the time the request [was] denied.” Ungar v. Sarafite, 376 U.S. 575, 589
(1964). Smith requested a continuance – on the day of his scheduled sentencing –
so that he could file a pro se motion for a new trial. But the trial court had already
heard, and appropriately rejected, the grounds for that motion.
4. There was no constitutional violation resulting from the trial court’s
response to the jury’s question on the difference between malice aforethought and
premeditation. A trial court enjoys “wide discretion” in responding to a question
from the jury. Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir. 2003). Smith does
not suggest that the trial court’s brief explanations of malice aforethought and
premeditation were incorrect statements of the law, nor does Smith suggest that
there were any deficiencies in the underlying instructions to which the court
pointed the jury. Indeed, because the jury did not ask any followup questions, we
must presume that the jury understood the court’s response and appropriately

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applied the instructions referenced in that response. See Waddington v. Sarausad,
555 U.S. 179, 195-96 (2009) (citing Weeks v. Angelone, 528 U.S. 225, 234
(2000)).
5. The admission of testimony from one of the State’s witnesses
concerning a menacing T-shirt left on his car prior to trial did not “render[] the trial
so fundamentally unfair as to violate due process.” Randolph v. California, 380
F.3d 1133, 1147 (9th Cir. 2004) (internal quotation marks omitted). The testimony
implicated Smith only indirectly, if at all; further, before admitting the testimony,
the trial court gave a limiting instruction that the jury could consider the testimony
only for the purpose of evaluating the witness’ credibility. Juries are presumed to
follow such instructions. See Zafiro v. United States, 506 U.S. 534, 540 (1993).
6. The prosecutor’s comments on Smith’s failure to call his girlfriend
and Anthony Woods as witnesses did not violate the dictate of Griffin v.
California, 380 U.S. 609 (1965). “[A] prosecutor may properly comment upon a
defendant’s failure to present witnesses so long as it is not phrased to call attention
to [the] defendant’s own failure to testify.” United States v. Castillo, 866 F.2d
1071, 1083 (9th Cir. 1988) (internal quotation marks omitted); see also United
States v. Inzunza, 638 F.3d 1006, 1023 (9th Cir. 2011), cert. denied, 132 S. Ct. 997
(2012). Here, the prosecutor’s comments did not run afoul of this test. They in no

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way drew attention to Smith’s not testifying, but only spoke to the failure to
present two particular witnesses who could have exonerated Smith.
7. Smith is not entitled to relief on his claims of ineffective assistance of
trial counsel. The Sacramento County Superior Court reasonably concluded that
trial counsel was not ineffective in failing to call an expert witness. Smith merely
speculates as to the expert testimony that could have been produced, but
“[s]peculation about what an expert could have said is not enough to establish
prejudice.” Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997). The Superior
Court also reasonably concluded that Smith was not prejudiced by the failure to
call Anthony Woods as a witness. In several letters that Woods sent to Smith’s
state appellate counsel, Woods asserted that Scott Appleby had lied about who
picked up the shell casings following the shooting. Yet this testimony had already
been undermined at trial. Moreover, Woods’ letters never disputed the central fact
of the case – that Smith was the shooter – making it unlikely that his testimony
would have negated the strong evidence to this effect produced at trial. Finally,
Smith’s claim that trial counsel was ineffective for failing to give an opening
statement fails. This is the kind of decision that is “a mere matter of trial tactics.”
United States v. Rodriguez-Ramirez, 777 F.2d 454, 458 (9th Cir. 1985).

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8. The consecutive sentence that Smith received pursuant to Cal. Penal
Code §12022.53(d) did not violate the prohibition against double jeopardy. See
Plascencia v. Alameida, 467 F.3d 1190, 1204 (9th Cir. 2006).
9. Smith did not receive ineffective assistance of appellate counsel for
failure to raise various of his claims on direct appeal, because all of his claims are
without merit. See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001).
The judgment of the district court is AFFIRMED.

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