In re Soderstrom

Filed 6/21/07 In re Soderstrom CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of habeas corpus to challenge a judgment of the Superior Court of Orange County, James P. Marion, Judge. Writ denied.

Randy Lee Soderstrom, in propria persona, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Marilyn L. George, Deputy Attorney General, for Respondent.

* * *

For the fifth time, Randy Lee Soderstrom petitions us for a writ, contending the two attorneys we appointed to represent him for purposes of his appeal and the consolidated first petition for writ of habeas corpus[1] rendered ineffective assistance to him in those proceedings. He also requests we take judicial notice of our files in cases G036476 and G034723, which we grant. In this petition,[2] he makes a myriad of contentions, essentially attacking one attorneys failure to argue certain issues on appeal and then attacking habeas counsels actions in the writ proceeding. As most of the issues were already held by us to be lacking in merit in our prior opinion in the consolidated cases numbered G034723 and G036476, and Soderstroms ad hominem attacks on counsel are irremediable via habeas petition, we summarily deny his petition without further evidentiary hearing.

FACTS

Soderstrom was convicted at trial of the attempted voluntary manslaughter of Wayne Dennis Corder, Jr., the attempted robbery of the same man, assault with a firearm and residential burglary, all of which were accomplished with the personal use of a gun.[3] For the facts of this case, we summarize the trial testimony as found in our opinion affirming the judgment on appeal in case numbered G034723:

After an evening of partying at his home, Corder, Corders roommate Perry OKeefe, their girlfriends Jill and Jamie, Darren Smeltzer and Anthony Montana were either sleeping or trying to get to sleep around 3:30 a.m., when suddenly Soderstrom arrived and banged on the front door. He had been at the party earlier but had left. He now returned and, after gaining entry, pulled a gun on Corder and Smeltzer, ordered the others to come out of their rooms and then directed to Corder to bind them with duct tape. Soderstrom demanded to be paid, although the amount of his demand was in dispute: Corder said it was $5000, OKeefe said either $5000 or $500, while others thought it was $1000 or $1000 per week. Jamie was sent to awaken Montana in a back bedroom, and while watching her, Soderstrom was tackled by Corder who attempted to wrench the gun from him. They struggled in the dark, and Corder heard Soderstrom hiss, Youre dead. Then Corder heard a click and a loud and long ringing in his ear.

Meanwhile, Smeltzer grabbed a large football helmet lying nearby and began beating Soderstroms head with it. Eventually, Soderstrom released his hold on the gun, and Corder took it and began pistol-whipping him with it. Soderstrom managed to flee to the door and then out to his car with Smeltzer and Corder following on his heels, all the while raining him with blows.

As the prosecutor admitted, none of the witnesses were particularly sterling characters. Corder testified at the preliminary hearing that no one used drugs at the party and that he had never sold or bought drugs in the past. This statement was a blatant lie, to which Corder admitted at the trial. He had no choice but to admit it: He was arrested for drug and alcohol offenses between the time of his preliminary hearing testimony and the time of Soderstroms trial, which necessitated a grant of immunity to assure his testimony at trial. Finally, OKeefe had a prior conspiracy conviction and a separate drug possession conviction, although he was not confronted with these past convictions at trial. He did admit, however, that he previously used drugs.

DISCUSSION

A.     Appointed Counsels Alleged Refusal to Deny Return and File Traverse

Soderstrom contends appointed counsel refused to file a satisfactory traverse to the return to the petition for writ of habeas corpus numbered G036476 and consolidated with the appeal numbered G034723. Noting that the writ of habeas corpus is the safe-guard and the palladium of our liberties, (In re Clark (1993) 5 Cal.4th 750, 764) he contends appointed counsel has flagrantly failed to accord him competent attention and deference. Specifically, he contends counsel refused to file a traverse that denied all allegations made by the Attorney General in its return by detailing the facts contrary to those allegations. Soderstrom argues that the Attorney Generals admissions in its return should have resulted in the automatic issuance of the writ, but for his counsels failure to file such a traverse.

First, we note that appointed counsel filed a traverse to the Attorney Generals return in a timely fashion, explicitly denying 23 of the 26 allegations made in the return. The three remaining allegations were statements on legal procedures and inapplicable to Soderstroms fact-based allegations. Thus, Soderstroms basic argument that the petition would have been granted but for counsels refusal to file the traverse is groundless.[4]

Soderstroms essential complaint is that appointed counsel should have explicitly laid out the factual allegations in the traverse supporting his denial for each of the 23 claims. Such a practice can be done but is not necessary if the original petition details the factual allegations on which the petitioner rests his claims and the petitioner stipulates to their use.[5] (See generally 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs,  74, p. 606.)

However, Soderstrom exhibits a basic misunderstanding as to appointed counsels responsibilities in a post-appeal, extraordinary writ proceeding. To begin with, Soderstrom has no federal constitutional right to collateral relief, much less to have counsel appointed for him to pursue it. [State habeas] is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief, cf. United States v. MacCollom, 426 U.S. 317, 323, 96 S.Ct. 2086, 2090-2091, 48 L.Ed.2d 666 (1976) (plurality opinion), and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well. (Pennsylvania v. Finley (1990) 481 U.S. 551, 557.)

When there is no right to appointed counsel, there is no concomitant right under the federal constitution to effective representation by counsel. (See Murray v. Giarratano (1989) 492 U.S. 1, 6-7 [no federal right to appointed counsel for collateral relief].) Moreover, on a claim under the federal constitution for ineffective assistance of appellate counsel, the two-pronged test of Strickland v.Washington (1984) 466 U.S. 668 applies: The burden is on the defendant to show not only that counsels representation was deficient and not merely tactical, but that it was reasonably probable that, but for counsels inadequate representation, the result would have been different. (See Smith v. Robbins (2000) 528 U.S. 259, 285-286; see also People v. Kipp (2001) 26 Cal.4th 1100, 1139-1140; In re Smith (1970) 3 Cal.3d 192, 202.)

We must highlight that competent counsel on appealmuch less on habeasis not required to raise every conceivable issue. Exercising professional discretion selectively does not equate with ineffective appellate representation. To the contrary, [e]xperienced attorneys recognize the importance of selecting one or a few key issues to raise on appeal and of winnowing out the weaker issues. Neither Anders v. California [(1967) 386 U.S. 738], nor any other Supreme Court decision, nor the Constitution, compels an appointed attorney to raise every nonfrivolous issue requested by his client, if the attorney in his professional judgment decides otherwise. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal,  37, p. 280.) Moreover, merely arguing that an issue [was] not advanced by prior counsel does not itself establish inadequate performance by prior counsel. As the high court has observed, appellate counsel (and by analogy habeas counsel as well) performs properly and competently when he or she exercises discretion and presents only the strongest claims instead of every conceivable claim. [Citations.] (In re Robbins (1998) 18 Cal.4th 770, 810, original italics.) Such discretion and selectivity are the hallmark of effective appellate advocacy. (Smith v. Murray (1986) 477 U.S. 527, 536.)

We review Soderstroms myriad of claims against appointed habeas counsel under the above standard,[6] keeping in mind the burden that must be borne by him in this proceeding.

1.      Prosecutions Intentional Suppression of Exculpatory Evidence

a.       OKeefes and Jamies Prior Convictions

These allegations were resolved in the opinion filed by this court on ____ numbered G036476 under the headings, 1. Failure to Disclose and 2. Suppressing Exculpatory Evidence. It should be noted that Soderstrom continues to argue that Jamie Marquez had a felony conviction that was not divulged by the prosecution, but no evidence of such has been provided. To the contrary, in Exhibit G attached to this petition, it appears that the Las Vegas conviction suffered by OKeefeand which Soderstrom contended arose from the same incident at which Jamie was allegedly arrested and subsequently convictedwas merely a misdemeanor, thus undermining his allegation that Jamie had a felony conviction arising from the same incident.[7]

As these contentions are lacking in merit, and as they were included and considered in the original petition in G036476, habeas counsels refusal to duplicitously advance them in the form of specific denials in his traverse[8] in that same case cannot be a violation of constitutional magnitude. (See In re Clark (1993) 5 Cal.4th 750, 769 [This court has never condoned abusive writ practice or repetitious collateral attacks on a final judgment.].)

b.      Tape of OKeefes Pretrial Interview

The failure to timely disclose a tape of a pretrial interview of OKeefe was raised and addressed in the previous habeas petition numbered G036476 under the topic, 2. (a) OKeefes Taped Interview[.] As there were no material inconsistencies between the taped interview and the previously divulged report of the interview,[9] the delayed arrival of the tape itself was not prejudicial. Thus, habeas counsels refusal to reiterate the allegations already presented in the original petition was not prejudicial.

2.      Newly Discovered Evidence of Trial Counsels Incompetency

We address this topic, noting that newly discovered evidence is a basis for relief only if it undermines the prosecutions entire case. It is not sufficient that the evidence might have weakened the prosecution case or presented a more difficult question for the judge or jury. . . . [S]uch evidence, if credited, must undermine the entire prosecution case and point unerringly to innocence or reduced culpability. (In re Clark, supra, 5 Cal.4th at p. 766, italics added.) The same rule applies if the failure to discover and present the evidence was due to trial counsels incompetency. (Ibid.)

Soderstrom fails to meet his burden under this issue as well. He makes a series of attacks on trial counsels performanceto wit, failure to object to Corders testimony regarding the type and amount of drugs he was arrested for, failure to challenge the venire because no African-Americans were represented in the jury panel called for his trial, failure to object to certain remarks by the prosecutor, failure to interview character witnesses,[10] inexplicably impeaching his own witness,[11] failure to test evidence,[12] failure to subpoena Steve Darden,[13] failure to attack the prosecution for failing to divulge Corders performance on probationand extrapolates from these attacks that habeas counsel must have ineffectively represented him by failing to pursue them in the petition consolidated with the appeal, numbered G036476 and G034723. Simply because counsel has, in his wisdom and experience, chosen not to pursue a line of argument does not necessarily render his representation ineffective. (See Jones v. Barnes (1983) 463 U.S. 745, 745-746.) To the contrary, the burden is on the petitioner to show that, if true, the allegations he makes would undermine the prosecutions entire case. (Cf. In re Clark, supra, 5 Cal.4th at p. 766.)

Even if we assume all of Soderstroms allegations were true, they would not have shown Soderstrom innocent of the charges which the jury found.[14] We address each in turn. Assuming arguendo:

(1) The trial attorney had objected to Corders testimonyor cross-examined him extensively on itregarding the type and amount of drugs found on him when he was arrested between the time of the preliminary hearing and the time of trial. This tangential point was not relevant to the issue of guilt: The jury knew Corder received immunity regarding any drug issues at the scene of this crime, and the jury knew he had been arrested and found guilty of drug offenses. The type and amount of drugs was truly irrelevant.

(2) The trial attorney had objected to the venire due to the absence of any African-Americans on the panel. It is wholly speculative whether anything would have been accomplished by such an objection: The burden would have been on the party questioning the panel to persuade the trial judge that either total exclusion or underrepresentation of a cognizable group from the jury panel had occurred. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial,  442-444, 631-636.) Moreover, the requisite showing must be that a systematic exclusion has purposely excluded a class from participation in the composition of the jury panels. (See People v. Spears (1975) 48 Cal.App.3d 397, 403; People v. Cummings (1993) 4 Cal.4th 1233, 1278.) The burden would have been on the defense to show that the Orange County Jury Commissioners procedures were not faciallyneutral. And the trial courts determination on claims of group bias is entitled to great deference and is reversed on appeal only upon a clear showing of abuse of discretion. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial,  461, pp. 658-659.) There was no indication whatsoever that the jury panel was not neutrally drawn. It is a fact of demographicsand not a product of racial biasthat there is not a large minority of African-Americans in Orange County. No possible difference in counsels actions regarding the jury panel would have affected the jury verdict in this case.

(3) The trial attorney had objected to the prosecutors remarks, characterized by Soderstrom as prosecutorial misconduct. Such objections would have been overruled because the remarks were within the boundaries of argument. Moreover, the points were either raised before and denied, or should have been raised before, as they were clearly within the record on appeal.

(4) The trial attorney had interviewed and found character witnesses to testify that he or she had never seen Soderstrom with a firearm in the past. As possession of the gun was only crucial because of its use in the early morning hours on the day in question, such testimony from generic character witnesses would have been lightweight at best. It was not Soderstroms mere possession of a gun that was at issue; what was material was his use of it that day. Moreover, had positive character witnesses been subpoenaed and testified in the fashion Soderstrom contends, it would have opened the door to potential negative character witnesses being called by the prosecution. (See In re Alcox (2006) 137 Cal.App.4th 657, 665-666 [[C]ourts do not generally second-guess counsels tactical decisions such as declining to pursue an alibi when the prosecution had witnesses ready to testify that defendant bragged about concocting a false alibi. Such a choice was sound trial strategy.]

(5) The trial attorney inexplicably impeached his own witness, Soderstrom, by recalling him and asking him to explain the circumstances ofhis prior felony conviction.[15] Soderstrom notes that the prosecution, defense and the court had earlier agreed that if Soderstrom testified, he would only be impeached with his prior conviction for a moral turpitude crime, and not with any further details. However, trial counsel asked, on redirect examination, for Soderstrom to explain the circumstances of the prior crime because Soderstrom volunteered that he was formerly convicted of perjury on cross-examination. The inquiry was necessary to try and rehabilitate the defendant; defense counsel did not impeach his own witness. But even if this matter had been raised by habeas counsel, it would not have shown unerringly that Soderstrom was innocent. At most, remedying this errorif error it wasmight have resulted in weakening the prosecutions case, but only slightly: The tremendous weight of the evidenceincluding OKeefes 911 call placed during the robberywould have still convicted Soderstrom.

(6) The trial attorney had tested the hairs found in the backpack.[16] The trials result would not have differed had the hairs been tested. Assuming the hairs were found to belong to some other person, that testimony was consistent with both Soderstroms trial testimony and the prosecution case: Soderstrom testified he was essentially homeless and had been staying with various people as a temporary guest. Thus, the evidence would only have been redundant with the case the jury considered and from which it found Soderstrom guilty. Soderstroms allegations that the prosecution had tested but then suppressed such evidence on their own is unfounded: The DNA tests conducted by the prosecutionand referred to generally in the prosecutors emailswere limited to the blood samples found at the doorway and on the ground after Soderstrom fled the scene.

(7) The trial attorney cross-examined Jamie Marquez as to pretrial statements she made to an investigator that she was employed at some time by some police department and as to her direct testimony concerning slight inconsistencies. Although it is rather unclear how these statements are relevant to this case, had Jamie been questioned as to this reference and been found to have misrepresented her status or her employment, it still does not undermine any direct evidence of guilt: Jamie was one of the last persons to come into the living room where Soderstrom held Corder, Smeltzer, OKeefe, and Jill at gunpoint. She was the first to leave, ostensibly to awaken Montana in the back bedroom. She then managed to flee the apartment, testifying that she saw Soderstrom running to his car with his head bleeding. Any attacks on her pretrial statements that were never even admitted at trial would have been discounted by the jury as irrelevant; and any inconsistencies in her testimony from that of Corder, Smeltzer, OKeefe and Jill were reasonably explained based on their differing positions and involvement in the incident.

(8) The trial attorney pursued and obtained the information from the prosecution that Corder had tested positive while on probation at the time of Soderstroms trial. This issue was addressed and rejected in the original petition for habeas, and again Soderstrom fails to show that the prosecutor knew of the positive tests, information confidentially held by the probation officer supervising Corder. None of Soderstroms attached exhibits provide any further support to his allegations.[17]

In conclusion, Soderstrom has failed to meet his burden in showing that habeas counsel ineffectively represented him in the prior petition numbered G036476.

3. Habeas Counsels Failure to Investigate

Soderstrom complains that habeas counsel has refused to investigate and obtain the testimony of Darren Smeltzer. However, this claim was previously raised against trial counsel, and we resolved the issue adversely to his position under the heading, 2. Deficient Defense Investigation and the subheading, (b) Darren Smeltzer in our previously filed opinion (G036476). Specifically, Smeltzer did not exculpate Soderstrom, as Soderstrom attempts to argue here. Smeltzer said he did not recall hearing any demands of money from Soderstrom but knew he wanted to rob [them]. That belief and understanding prompted Smeltzers attacking Soderstrom with the football helmet until Soderstroms head was bloodied.[18] Thus, Soderstroms arguments that habeas counsel failed to pursue this same witness must be rejected: No showing sufficient to infer Soderstrom was not guilty of the charges has been made here.[19] It matters not that, as Soderstrom argues, various impeachment issues might have resulted in the jury putting not only Corders credibility in a different light, but Officer Monteros as well. The determination of an attorneys incompetency is quite different in a post-conviction collateral attack as it would be on a motion for new trial, although the same test is employed. (Compare 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment,  110, pp. 141-142, 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial,  225- 227, pp. 350-354; see also People v. Cornwell (2005) 37 Cal.4th 50, 98-102 [It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsels effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such a motion, it should do so. [Citation.] [] . . . [But when] the claim of ineffective assistance of counsel at the guilt phase of trial rested primarily upon matters other than what the trial court could have observed during trial, [then] the court acted within its discretion in concluding the claim should be litigated in a habeas corpus proceeding.].)

B.     Appointed Counsels Allegedly Abusive Treatment of Defendant

Soderstrom contends his habeas counsel abusively mistreated him, responding to his inquiries and suggestions with rude, disrespectful and insulting statements[.] He demands either that he be allowed to represent himself or to have a specific attorney be appointed to replace habeas counsel.

Soderstrom has filed his present petition in propria persona and it is accepted as such. Counsel remains appointed on the previous cases already resolved. No further relief is needed.

C.     Appointed Counsels Refusal to File Motions

Soderstrom complains that habeas counsel has refused to file a motion for discovery and a motion to augment the record with the transcript of the jury voir dire and opening statements of counsel. But we have already rejected Soderstroms claims regarding the jury voir dire transcripts and possible issues in our opinion (G034723, G036476) as lacking in merit. As for the motion for discovery of post-conviction exculpatory information and his psychiatric file held by the jail medical staff, Soderstrom has failed to allege what, if any, materiality these items provide to undermine the verdict. Moreover, Soderstrom has failed to pursue his most direct avenue of relief: Application for relief in the lower court. (See generally 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs,  20, pp. 540-541.) We decline to exercise our jurisdiction over the matter until he has unsuccessfully applied for the writ in the lower court of the county of detention. [Citation.] (Id. at p. 540; but see 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial,  78, pp. 137-138.)

The petition is denied.

SILLS, P. J.

WE CONCUR:

BEDSWORTH, J.

MOORE, J.

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[1] Soderstrom has actually filed a total of 6 cases with us: (1) a petition for writ of mandate (G035441) filed in pro. per. on April 22, 2005 and denied by us on April 28, 2005, demanding a personal copy of his trial transcript; (2) an appeal (G034723) filed by appointed counsel on November 17, 2004, for which we affirmed the judgment on June 20, 2007; (3) a petition for writ of habeas corpus (G036476) filed in pro. per. on December 20, 2005, but for which we appointed counsel and which we consolidated with the appeal and denied on June 20, 2007; (4) a petition for writ of mandate (G036589) filed in pro. per. on January 17, 2006, requesting we order DNA testing of some hairs found on a backpack, and which we denied on February 17, 2006, and which the California Supreme Court refused to review; (5) this petition for writ of habeas corpus (G037938) filed in pro. per. on November 5, 2006; (6) a petition for writ of mandate (G038357) filed in pro. per. on March 14, 2007, again requesting we order the trial court to give him personal copies of the transcripts of the trial, which we again denied by order on April 24, 2007; and (7) a petition for writ of mandate (G038745) filed on June 7, 2007, and denied by order on June 20, 2007.

[2] Soderstrom filed his 211-page petition with 14 attached exhibits on December 5, 2006. He then filed a 90-page document entitled, Supplemental Petition with 12 attached exhibits on January 19, 2007, and an 86-page document entitled, Supplemental Petition (II) with six attached exhibits on February 2, 2007. Following the Attorney Generals letter, filed as an Informal Response as ordered by this court, Soderstrom filed a 125-page document entitled, Reply to Informal Response, which had six attached exhibits. A few days later, he filed his Motion for Judicial Notice which is granted and the materials are considered in this opinion.

[3] Originally, Soderstrom faced an attempted murder charge, five counts of attempted robbery, assault with a firearm and residential burglary. However, the jury acquitted him of four of the five counts of attempted robbery and the attempted murder, finding instead that he was only guilty of the lesser offense of attempted voluntary manslaughter.

[4] Soderstrom fails to understand that a petitioner carries the burden of both pleading and proof. Although he is right that factual assertions must be made in support of each of the petitions claims, a petition does not issue merely because an order to show cause (OSC) has been ordered: Issuance of an OSC, therefore, indicates the issuing courts preliminary assessment that the petitioner would be entitled to relief if his factual allegations are proved. (People v. Duvall (1995) 9 Cal.4th 464, 475, latter italics added.)

[5] In this case, appointed habeas counsel also incorporated by reference all the factual allegations from the original petition and the supplemental pleadings in the traverse.

[6] Counsel that was appointed to assist Soderstrom in his collateral attack by way of a petition of habeas corpus was also appointed simultaneously as appellate counsel, replacing the original appellate counsel who had already filed the appellate briefs in the case. We note that Soderstroms complaints against replacement counsel appear to be confined to his performance as habeas counsel.

[7] We acknowledge Soderstroms argument that the prosecution never divulged the actual police reports of the earlier incidents leading to the various convictions held by Corder, OKeefe, Jamie, and Jill. However, as noted in our opinion in G036476, the prosecution is only required to divulge the proof of the prior convictions, not background evidence supporting them. (Cf. People v. Allen (1986) 42 Cal.3d 1222, 1270.)

[8] We repeat that habeas counsel incorporated the original petition and all of its factual allegations in his traverse to the return.

[9] Soderstrom contends in this petition that the Attorney General intentionally misled this court in selectively excising certain portions of the taped interview, thus removing from our attention the pertinent portions of the tape which were allegedly inconsistent with the report regarding any threats made by Soderstrom during the struggle with Corder. We reviewed the entire transcript of the taped interview. It fails to support Soderstroms accusations or interpretations. Specifically, OKeefe states to the detective I heard from Danny when they were struggling. I actually heard him [referring to Soderstrom, not Corder] say, he goes, Oh, youre dead, and and he pulled the trigger, but but he never had a bullet in the chamber. The detective then asked, Did you hear a loud click? OKeefe answered, Yes. OKeefe then volunteered to testify against Soderstrom, saying cause, uh, when someone, you know, getstells you to get on your knees and points a gun, I have . . . no problem coming in.

[10] This allegation was not raised in Soderstroms original petition for habeas corpus. In the present petition, he argues trial counsel failed to interview several character witnesses who would allegedly testify that Soderstrom never carried a firearm of any kind. We need not address it further because such a contention should have been properly raised in Soderstroms appeal or his initial petition for habeas corpus which attacked trial counsels competency on many other grounds. (See In re Clark, supra, 5 Cal.4th at p. 770 [A successive petition presenting additional claims that could have been presented in an earlier attack on the judgment is, of necessity, a delayed petition.].)

[11] Similar to the allegation detailed in footnote 6, ante, Soderstrom now complains that his trial counsel, for no conceivable tactical reason, recalled [Soderstrom] back to the stand after cross-examination, and told him to tell the jury about the details of his prior convictions. (Original emphasis.) Irrespective of the accuracy of this accusation, such a claim should have been raised either in the appeal or the original petition for habeas corpus in which trial counsels representation was attacked. (See In re Clark, supra, 5 Cal.4th at p. 770.) It is irrelevant, however, because trial counsels inquiry was prompted by Soderstroms volunteering the nature of the offense. Thus, it was a tactical decision well within trial counsels discretionary boundary.

[12] Soderstrom already petitioned us regarding this claim, which we denied on February 17, 2006 in case numbered G036589. Thus, as we already held, it is lacking in merit. If it lacks merit, habeas counsel could not have been ineffective for failing to raise it. (See generally In re Lower (1979) 100 Cal.App.3d 144, 149, fn. 3 [there is no obligation on the part of any attorney to embark on a program of fruitless, time-consuming, nonproductive motions which . . . may make a dandy record but be of little or no value to his client.].)

[13] The claim regarding trial counsels failure to subpoena Steve Darden, addressed and resolved in the prior case (G036476) has been raised again here, under the rubric of newly discovered evidence. Soderstrom presents in Exhibit C a handwritten note with cryptic references from an alleged interview. However, Soderstrom misrepresents the note entirely: He alleges this was an interview on August 5, 2004 by a defense investigator with Steve Darden. If that were true, defense counsels representations to the court during a Marsden hearing were false when he denied knowing of Steve Darden.

The notes are from someone (presumably the defense investigator) taken during an interview with Soderstrom in which Soderstrom named Steve Darden as a bartender who hired a bouncer by the name of Brada. Soderstrom has completely misrepresented this document. The note includes a reference to Bradas girlfriend, Connie, who allegedly worked for SW Airlines. Brada was allegedly a collection person for dope deals by Corder. Below this is a reference to a gun stolen from SW Airlines and to Jeremy Healey, a neighbor of Soderstroms and someone Soderstrom considered a friend. Nothing in this note shows Soderstroms innocence at all, even though the interview is of him, and not of Steve Darden, as he misrepresents to the court.

Soderstroms trial began about two weeks after this interview.

[14] Habeas counsel explained this to Soderstrom in a letter he attaches to this petition, marked as Exhibit A. Habeas counsel attempted to guide Soderstrom as to what is relevant and valuable in a habeas proceeding and what is not. As counsel advised in his letter to Soderstrom, If you are going to be representing yourself in the future, let alone other people, you need to curb your overstatements. They simply turn off the reader, and it is the reader (the courts) you are trying to reach. [] I believe that my filing [of the traverse] preserves all issues; I believe that you covered everything in the initial filings.

[15] Once again, the record fails to support any of Soderstroms allegations. On cross-examination, the prosecutor asked the question of Soderstrom whether he had been previously convicted of a crime of moral turpitude, as the court and counsel had agreed at the pretrial hearing. Soderstrom attempted to talk about his entire criminal record. The court cut him off, and the prosecutor properly did not inquire further about the prior conviction. However, Soderstrom volunteered the details of the prior conviction, relating that it was for perjury, as an explanation for his failure to reveal his prior felony conviction when he applied for an important job. Defense counsel attempted to rehabilitate his witness on redirect by inquiring as to the circumstances of the perjury charge, in an attempt to minimize its impact: It stemmed from an effort to use free airline tickets.

[16] We need not respond to this issue in depth as it was raised and denied by us in Soderstroms petition for writ numbered G036589, and then also denied by the California Supreme Court in their case numbered S141700.

[17] Soderstrom fails to discern the difference between the defenses ability to obtain on its own the information on the probationary status of a witness (see Milhaud v. Superior Court (1986) 182 Cal.App.3d 471, 477) and confidential information which later results in a probation officer filing the charge of a probation violation.

[18] Soderstrom raises for the first time another point in his allegations of Smeltzers potential testimony: That Smeltzer corroborated Soderstroms testimony that the gun was Corders and that Corder originally brought it out to force Soderstrom to commit a robbery of another drug dealer. He selects one portion of the transcript of the interview by the Newport Beach police detectives, to the exclusion of the rest of the interview. On one occasion, Smeltzer misspoke as to the person who owned the gun. Soderstrom interprets this as a slip revealing the truth, ignoring the fact Smeltzer immediately corrected himself when the detective stopped him and asked pointedly whether it was Corder or Soderstrom with the gun.

[19] Soderstrom often confuses habeas counsel with trial counsel in this argument, referring to habeas counsels failure to telephone Smeltzer or subpoena him for trial. But as we declared early in this opinion, the duty of habeas counsel is not the same as that of trial counsel, although the legal test for ineffective assistance of counsel is the same whether at trial or on collateral proceedings. (Cf. Smith v. Robbins, supra, 528 U.S. at 285-286; People v. Kipp, supra, 26 Cal.4th at 1139-1140.)