This case was last updated from California Courts of Appeal on 04/09/2022 at 16:15:42 (UTC).

In re SHAZAD MOHAMMAD KHAN on Habeas Corpus

Case Summary

On 10/08/2021 In re SHAZAD MOHAMMAD KHAN on Habeas Corpus was filed as an Other lawsuit. This case was filed in California Courts of Appeal, Fourth Appellate District - Division 1 located in Statewide, California. The case status is Pending - Other Pending.
Case Details Parties Dockets

 

Case Details

  • Case Number:

    ***9578

  • Filing Date:

    10/08/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • County, State:

    Statewide, California

 

Party Details

Petitioner

Shazad Mohammad Khan

Respondent

Raybon Johnson

Attorney/Law Firm Details

Petitioner Attorney

Aaron Spolin

Attorney at Spolin Law

11500 W. Olympic Blvd., Ste. 400

Los Angeles, CA 90064

Respondent Attorneys

Office of the Attorney General

P. O. Box 85266

San Diego, CA 92186-5266

Office Of The District Attorney

412 W. Hospitality Lane, First Floor

San Bernardino, CA 92415-0042

Xavier Becerra

1300 I Street

Sacramento, CA 95814

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 10/25/2021
  • DispositionDescription: Petition summarily denied by order; Disposition Type: Final

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  • 10/25/2021
  • DocketDescription: Case complete.

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  • 10/25/2021
  • DocketDescription: Order denying petition filed.; Notes: The petition for writ of habeas corpus has been read and considered by Justices Haller, Irion, and Do. Judicial notice is taken of the opinion filed in appeal No. D076199. Shazad Mohammad Khan challenged P.M. to a fight on July 8, 2014. When Khan arrived on the scene, he pulled out a handgun and fired several shots that killed P.M. Khan went into hiding and was not apprehended for two years. On April 28, 2017, a jury found Khan guilty of first degree murder and found true an attached enhancement allegation he personally and intentionally discharged a firearm causing death. The trial court sentenced Khan to prison for two consecutive terms of 25 years to life each on August 10, 2017. On appeal, Khan claimed the judgment had to be reversed because the trial court erred by failing to instruct the jury that prosecution witness M.R., an eyewitness to the murder, was an accomplice whose testimony required corroboration; and the court abused its discretion by denying Khan's motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) without first reviewing in camera the personnel records of a detective who allegedly committed misconduct by using manipulative and suggestive tactics during an interview of M.R. to get him to identify Khan as the shooter. Khan also claimed the matter had to be remanded to allow the trial court to exercise its newly granted discretion on whether to strike or dismiss the firearm enhancement, and to hold a hearing to make a record on how Khan's youth played a role in the murder for use in a future youth offender parole hearing. This court remanded the matter to allow the trial court to exercise its discretion on the firearm enhancement and to hold a hearing on youth-related factors and otherwise affirmed the judgment. (People v. Khan (Feb. 3, 2020, D076199) [nonpub. opn.].) The Supreme Court of California denied Khan's petition for review on April 29, 2020.On May 18, 2021, Khan filed in the trial court a petition for writ of habeas corpus challenging the judgment on grounds of ineffective assistance of trial and appellate counsel and actual innocence. The superior court summarily denied the petition four weeks later. By the present petition, Khan continues his collateral attack on the judgment on the same grounds he asserted in the trial court. His main claim is deprivation of the right to the effective assistance of counsel at trial. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, 15; see Strickland v. Washington (1984) 466 U.S. 668, 684-686 [6th Amend. right to counsel applies to states through 14th Amend. and guarantees effective assistance]; People v. Ledesma (1987) 43 Cal.3d 171, 215-218 [adopting Strickland standard as California law].) Khan complains trial counsel: 1. failed to investigate and present an alibi defense, even though Khan had given counsel names of alibi witnesses to contact before trial; 2. failed to hire an investigator to interview M.R. and to discover evidence that M.R. was biased against Khan and to use that evidence at trial to force M.R. to admit that Khan was not the shooter, even though Khan had provided evidence of M.R.'s bias to counsel before trial; 3. failed effectively to elicit from defense witness A.W., an eyewitness to the murder, testimony that would have convinced the jury Khan was not the shooter and not even present at the shooting; 4. failed to present the exculpatory evidence described above because counsel's friendship with the district attorney created a conflict of interest that caused counsel to "curry favor" with the prosecution rather than to defend Khan zealously; and 5. failed to conduct a thorough investigation of the evidence against Khan, which would have enabled counsel to "cast serious doubt on the integrity and credibility of the [prosecution's] investigation." Khan also complains appellate counsel was ineffective for failing to include in the petition for review filed in the Supreme Court of California the claim regarding the Pitchess motion. Finally, Khan claims he is "actually innocent," and as support for this claim he relies on M.R.'s alleged recantation of his trial testimony and the exculpatory evidence Khan contends trial counsel could have discovered and presented at trial had he performed competently. Khan asks this court to vacate the judgment of conviction and to order his immediate release from prison. The only documents attached to the petition are copies of the opening brief Khan filed in the appeal from the judgment, this court's opinion in the appeal, the petition for writ of habeas corpus Khan filed in the trial court (which contains no exhibits), and the trial court's order denying the petition.Khan is not entitled to habeas corpus relief because his claims are procedurally barred as untimely. California courts "insist a litigant mounting a collateral challenge to a final criminal judgment do so in a timely fashion." (In re Sanders (1999) 21 Cal.4th 697, 703; accord, In re Reno (2012) 55 Cal.4th 428, 459.) Such a challenge must be mounted "without substantial delay." (Robinson v. Lewis (2020) 9 Cal.5th 883, 897.) "Substantial delay is measured from the time the petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim." (In re Robbins (1998) 18 Cal.4th 770, 780; accord, Robinson, at p. 897.) Khan knew or should have known no later than April 28, 2017, the date the jury found him guilty of murder, that his trial counsel had not put on an alibi defense based on the witnesses Khan had identified, had not impeached M.R. with the evidence of bias Khan had identified, had not effectively examined A.W., and otherwise had not presented the vigorous defense that competent investigation and advocacy required. Khan, however, did not pursue his claims of ineffective assistance of trial counsel until more than four years later, when he filed a petition for writ of habeas corpus in the superior court. Khan knew or should have known appellate counsel had not pursued in the Supreme Court of California the claim based on the denial of his Pitchess motion no later than April 29, 2020, the date the Supreme Court denied the petition for review. Yet Khan did not present his claim of ineffective assistance of appellate counsel to the superior court until more than a year later. In an attempt to justify the delay in presenting his claims, Khan alleges he was "diligent" in pursuing relief by retaining current counsel in October 2020 "to review his file and evaluate his post-conviction options." But Khan does not explain why he waited more than three years after conviction to retain counsel to consider potential post-conviction remedies or why it took current counsel, once retained, another seven months to assert claims based on information that was available at the time of trial or, at the latest, when the petition for review was denied. Khan thus has not met his burden to set forth specific facts showing the absence of substantial delay. (In re Robbins, supra, at p. 780; accord, In re Reno, supra, at pp. 461-462.) The requirement of timely pursuit of a collateral challenge to a final judgment of conviction is no mere technical requirement. "By requiring that such challenges be made reasonably promptly, we vindicate society's interest in the finality of its criminal judgments, as well as the public's interest 'in the orderly and reasonably prompt implementation of its laws.' [Citation.] Such timeliness rules serve other salutary interests as well. Requiring a prisoner to file his or her challenge promptly helps ensure that possibly vital evidence will not be lost through the passage of time or the fading of memories. In addition, we cannot overestimate the value of the psychological repose that may come for the victim, or the surviving family and friends of the victim, generated by the knowledge the ordeal is finally over." (In re Sanders, supra, 21 Cal.4th at p. 703; accord, People v. Benavides (2002) 99 Cal.App.4th 100, 107-108.) The murder of which Khan was convicted occurred more than seven years ago. During that time, witnesses' memories likely have faded, evidence may have been lost, and the family and friends of P.M. undoubtedly have tried to put the murder behind them and move on with their lives. In light of these concerns, Khan's failure to justify the substantial delay in mounting his collateral attack on the judgment allows rejection of the claims without consideration of the merits. (In re Reno, supra, 55 Cal.4th at pp. 459-460, 511.)Khan's petition also fails to state a prima facie case for habeas corpus relief. A prisoner challenging a presumptively valid final judgment of conviction by petition for writ of habeas corpus "bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them." (People v. Duvall (1995) 9 Cal.4th 464, 474.) To satisfy the pleading burden, "[t]he petition should both (i) state fully and with particularity the facts on which relief is sought [citations], as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations." (Ibid.) "Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing." (People v. Karis (1988) 46 Cal.3d 612, 656.) Khan has not sustained the pleading burden on any of his claims.We first consider Khan's claims of ineffective assistance of trial counsel. To state a prima facie case, Khan must allege specific facts and submit documents showing that "counsel inexcusably failed to make particular investigations or objections, or failed to introduce particular items of evidence," and that "the omissions resulted in the denial of or inadequate presentation of a potentially meritorious defense." (People v. Williams (1988) 44 Cal.3d 883, 936.) Khan has not done this for any of his claims. He has neither identified the alibi witnesses he contends trial counsel should have contacted nor submitted declarations from the witnesses describing the information they would have given had they been contacted. Khan has not shown counsel's presentation of evidence of M.R.'s bias was inadequate. Counsel called a witness (A.B.) who testified M.R. was upset because Khan had sex with the mother of M.R.'s child and physically fought with Khan the month before the murder, and counsel argued M.R. was a liar who hated Khan and was protecting the identity of the real shooter. Khan submitted no declaration from M.R. or anybody else describing additional information to which an interview or investigation of M.R. would have led and which would have impeached him further or caused him to recant his identification of Khan as the shooter of P.M. at trial. Counsel's examination of A.W. also appears to have been adequate. A.W. testified he was at the shooting, he knew and could recognize Khan, and Khan was not the shooter. Khan does not specify what additional testimony counsel could have elicited from A.W. that would have convinced the jury Khan was not the shooter and was not even at the shooting. To establish the conflict of interest that allegedly prevented counsel from vigorously defending Khan at trial, Khan offers the assertions of current counsel that trial counsel "was good friends with the district attorney" and therefore "tried to curry favor with the prosecution" by not "seriously undermin[ing] the integrity and credibility of the [prosecution's] investigation." No declaration from trial counsel, the district attorney, or anybody else establishes the friendship, and Khan cites no evidence of any attempt by counsel to "curry favor" with the prosecution. Current counsel's bare assertions are insufficient to "show that the conflict (a) existed and (b) had some palpable, real effect on the trial, i.e., the " ' "actual conflict of interest adversely affected his lawyer's performance." ' " (People v. Almanza (2015) 233 Cal.App.4th 990, 1001-1002.) Khan also cites no specific evidence to support his generalized contention that had counsel conducted a thorough investigation of the evidence against Khan, he would have been able to cast serious doubt on the prosecution's case and establish Khan's innocence at trial. In short, as to none of his claims has Khan met his burden to "demonstrate that counsel knew or should have known that further investigation was necessary" and to "establish the nature and relevance of the evidence that counsel failed to present or discover." (Williams, at p. 937.) His "unadorned and unexplained assertions of ineffective assistance of counsel . . . are inadequate to satisfy his pleading burden." (In re Reno, supra, 55 Cal.4th at pp. 499-500.)The claim alleging appellate counsel was ineffective for failing to pursue the denial of the Pitchess motion in the Supreme Court of California also fails to state a prima facie case. To prevail on this claim, Khan must allege specific facts and submit documents showing counsel's decision about which claims of error to pursue was objectively unreasonable and caused prejudice. (Smith v. Robbins (2000) 528 U.S. 259, 285.) Khan has not provided a declaration from appellate counsel regarding the reasons for not pursuing the Pitchess claim in the Supreme Court. Counsel "had no duty to argue every issue [Khan] wanted to raise, but rather was entitled to assess which issues were potentially meritorious." (Redante v. Yockelson (2003) 112 Cal.App.4th 1351, 1357.) Counsel reasonably might have decided the Pitchess claim was not worth pursuing further after this court rejected the claim on appeal. This court reviewed the transcript of the detective's interview of M.R. and found the detective had not employed manipulative or suggestive tactics to get M.R. to identify Khan as the shooter of P.M.; rather, the detective had merely engaged in "good police work." Even if appellate counsel disagreed with this court's resolution of the Pitchess claim, counsel still might have decided not to pursue the claim in the Supreme Court of California and to pursue others instead. "Appellate counsel does not provide deficient, i.e., objectively unreasonable, assistance by failing to raise every nonfrivolous claim on appeal." (In re Hampton (2020) 48 Cal.App.5th 463, 477.) Indeed, counsel has a duty to select from among the available nonfrivolous claims and to present those most likely to succeed. (Smith, at p. 288.) "For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every 'colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy . . . ." (Jones v. Barnes (1983) 463 U.S. 745, 754.)Lastly, we reject Khan's "actual innocence" claim. Before the Legislature amended Penal Code section 1473 in 2016, a habeas corpus petitioner asserting such a claim had to show "new evidence pointed " ' "unerringly to innocence' ' " and " 'undermine[d] the entire case of the prosecution.' " (In re Sagin (2019) 39 Cal.App.5th 570, 579; see In re Lawley (2008) 42 Cal.4th 1231, 1238-1239.) Now a petitioner may obtain relief by showing either that "[f]alse evidence that is substantially material or probative on the issue of guilt" was introduced at trial (Pen. Code, 1473, subd. (b)(1)), or that "[n]ew evidence exists that is credible, material, presented without substantial delay, and of such decisive force and value that it would have more likely than not changed the outcome of trial" (id., 1473, subd. (b)(3)(A); see In re Sagin, supra, at p. 579, fn. omitted [petitioner no longer must submit evidence proving that he did not commit the crime but "must show that the new evidence-viewed in relation to the evidence actually presented at trial-would raise a reasonable doubt as to guilt"].) Khan has not sustained the pleading burden on either ground. As purportedly "false evidence," Khan relies on the "tainted, biased, and since-recanted testimony" of M.R. that Khan shot P.M. Khan, however, has not provided a declaration from M.R. or any other evidence that he has recanted his testimony. Nor has he submitted any other evidence that M.R. testified falsely at trial. As "new evidence," Khan relies on the information he contends counsel could have discovered and presented at trial to prove Khan's innocence had counsel conducted an adequate investigation, presented alibi and other exculpatory evidence, effectively examined witnesses, and zealously pursued Khan's best interest instead of trying to "curry favor" with the prosecution. As discussed above, however, Khan has produced none of the evidence he faults counsel for not discovering and presenting at trial. It is not enough for Khan to insist he is actually innocent and to complain against counsel for not proving his innocence at trial. He must submit evidence that when "viewed in relation to the evidence actually presented at trial . . . would raise a reasonable doubt as to guilt." (In re Sagin, supra, at p. 579, fn. omitted.) Khan's unsubstantiated assertions of innocence are inadequate to meet the heavy pleading burden facing a habeas corpus petitioner attacking a presumptively valid final judgment of conviction. (People v. Duvall, supra, 9 Cal.4th at p. 474.) Where, as here, all of the claims in a petition for writ of habeas corpus are procedurally barred or fail to state a prima facie case for relief, the court will summarily deny the petition. (People v. Duvall, supra, 9 Cal.4th at p. 475; People v. Romero (1994) 8 Cal.4th 728, 737.) The petition is denied.

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  • 10/08/2021
  • DocketDescription: Petition for a writ of habeas corpus filed.

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