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September 9, 1991

AL GOMEZ, Respondent

Charles A. Legge, United States District Judge.

The opinion of the court was delivered by: LEGGE


 Petitioner seeks a writ of habeas corpus ordering his release from state prison. He alleges that the state violated his sixth amendment rights by failing to give him adequate notice that the prosecution intended to convict him of first degree murder under the theory of felony murder.


 The history of this habeas corpus proceeding is lengthy. In 1985 Usher filed his first petition for a writ of habeas corpus (No. C-85-6106). In that petition he alleged three grounds for relief: (1) ineffective assistance of trial counsel; (2) cruel and unusual punishment because of the sentence imposed upon him; and (3) a violation of due process, because he was convicted on a felony murder theory after the underlying felony charge had been dismissed.

 In 1986 this court denied that petition on the merits. However, in 1987 the court of appeals remanded the case to determine whether Usher had exhausted his state court remedies. On remand this court determined that petitioner had not exhausted his due process claim. This court gave petitioner the option of exhausting his due process claim and then returning to this court, or proceeding on the two exhausted claims. The order informed petitioner that if he chose the second option and later returned to this court with his due process claim, this court would not dismiss his later petition as an abuse of the writ.

 Petitioner chose to proceed on his two exhausted claims of ineffective assistance of trial counsel and cruel and unusual punishment. Those claims were refiled as a new petition (No. C-88-0020). In 1988 this court denied both claims. Usher again appealed, raising all three of his original claims. The Ninth Circuit affirmed, but did not address the unexhausted due process claim. Usher v. Vasquez, 865 F.2d 266 (9th Cir. 1988).

 Petitioner then exhausted his due process claim in state court, and in 1989 he filed the present petition. The petition now alleges two claims: (1) his original due process claim that the jury convicted him of felony murder even though the underlying felony had been dismissed, and (2) the ineffective assistance of appellate counsel, based on appellate counsel's failure to raise the due process and other claims. In an order issued in October 1989 this court ruled that Usher had not exhausted the claim of ineffective assistance of appellate counsel. The court again offered plaintiff the option of exhausting this claim, or abandoning it and resubmitting the petition with just the due process claim that had been exhausted. In November 1989 petitioner refiled this petition raising only the due process claim. This claim is therefore the sole subject of the present petition.

 In July 1990 the Ninth Circuit Court of Appeals decided a case which raised claims similar to petitioner's. Sheppard v. Rees, 909 F.2d 1234 (9th Cir. 1990). In September 1990 this court stayed further proceedings on this petition and ordered the appointment of counsel for petitioner, who had been acting pro se, in order to address the impact of Sheppard on petitioner's due process claim. Counsel was appointed, and in February 1991 the court directed counsel for both sides to submit briefs regarding the impact of Sheppard. In May 1991 this court heard oral argument and the petition was submitted for decision. The court concluded that no evidentiary hearing was necessary because the issues were ones to be resolved from the state court record. The court has considered the moving and opposing papers, the record and the applicable authorities, and concludes that petitioner's writ must be denied.


 The facts of Usher's conviction are as follows: He was accused of the murder of a drug dealer, Raymond Prudhomme. After Prudhomme's death, Usher approached his pastor and told him that he was involved in the death of a man. The pastor advised Usher to turn himself into the police. Usher allegedly confessed to police authorities that he initially planned to rob the victim, but eventually decided that the only way to get away with the robbery was to eliminate Prudhomme. The police then arrested Usher on murder charges.

 Usher later summoned the police to his cell and said that one Mack Robinson had conceived of the plan to lure Prudhomme to Robinson's apartment. Usher said that Robinson, instead of intimidating the victim with a gun, shot him as they prepared to rob him. The police searched Robinson's apartment and found the victim's blood on the walls and carpet.

 Usher's defense was that he was merely present as a drug tester, that he was under the influence of drugs at the time of the murder, and that he confessed to the crime because some inducement was offered to him.

 Usher was originally charged in a four count information with: (1) murder, California Penal Code § 187; *fn1" (2) personally using a firearm in commission of the murder, § 12022.5; (3) the felony of robbery, § 211; and (4) possession of a firearm by a previously convicted felon, § 12021. Prior to trial, petitioner's counsel filed a motion to dismiss the robbery count pursuant to California Penal Code § 995. The district attorney did not oppose the motion and conceded that there was insufficient evidence to support a robbery allegation. The Superior Court ordered the robbery count dismissed before trial. However, dismissal of the robbery charge did not under California law bar the prosecution from convicting Usher of felony murder with the robbery as the underlying felony. People v. Uhlemann, 9 Cal. 3d 662, 666, 108 Cal. Rptr. 657, 659, 511 P.2d 609 (1973); People v. Van Eyk, 56 Cal. 2d 471, 477, 15 Cal. Rptr. 150, 153-54, 364 P.2d 326 (1961).

 During jury voir dire, the court explained the doctrine of felony murder to the potential jurors, and the prosecutor questioned the prospective jurors on that issue. (See e.g., RT at 27-28, 35, 41, 44, 46, 73, 82, 87, 98-99, 146). In his opening statement, the district attorney informed the jury that he intended to prove that Usher planned the murder in order to commit robbery. (RT 203-206). No objection was made to those references to felony murder. Instead, defense counsel responded by asserting that the evidence would show that Usher was incapable of planning a murder, "let alone a robbery." (RT 209).

 Before final argument, the trial judge stated for the record that defendant's counsel approved all of the instructions to be given to the jury, except an instruction relating to lesser included offenses. (RT 407). The trial court instructed the jury on the elements of premeditated murder, and on felony murder by means of robbery. (RT 409, 423-429, 444-446, 448). The trial court also instructed the jurors that both premeditated murder and felony murder are first degree murder, and that even if they differed on whether petitioner was guilty of premeditated murder or felony murder, they could ...

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