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FRANKLIN v. SMALL

September 20, 2001

STEVE G. FRANKLIN, PETITIONER,
v.
LARRY SMALL, WARDEN, RESPONDENT.



The opinion of the court was delivered by: LaPORTE, United States Magistrate Judge.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

Steve G. Franklin, a California prisoner incarcerated at Corcoran State Prison, filed this action for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both petitioner and respondent consented to proceed before a United States Magistrate Judge. Franklin's amended petition is now before the court for consideration on the merits. For the reasons discussed below, the court will deny the petition.

BACKGROUND

A. Procedural History

At a jury trial in the Alameda County Superior Court, Franklin was found guilty of two counts of robbery and two counts of receiving stolen property. The jury also found that he had suffered several prior felony convictions, i.e., a 1973 assault with a deadly weapon conviction, a 1977 burglary conviction, four 1981 burglary convictions, and a 1990 robbery conviction. He was sentenced to a term of 120 years to life in prison on May 8, 1997. Franklin appealed his conviction; the California Court of Appeal affirmed the judgment of conviction and the California Supreme Court denied his petition for review. The California Supreme Court also denied Franklin's petition for writ of habeas corpus.

Franklin then filed this action to obtain a federal writ of habeas corpus. The court reviewed Franklin's petition and dismissed it with leave to amend to cure certain deficiencies identified by the court. Franklin then filed an amended petition. The court reviewed the amended petition and issued an order to show cause why the writ should not issue. Respondent has filed an answer and Franklin has filed a traverse.

B. The Crimes

1. Robbery of Darol Wallace

This criminal charge concerned an incident during which Franklin admittedly took money from Darol Wallace. The prosecution presented the following evidence. Wallace shared a home with his girlfriend, Beverly Ray, who was Franklin's mother. Franklin came to the home on December 23, 1994, claiming to be looking for personal property (i.e., a bag of clothes and martial arts gear) that Franklin thought Wallace had stolen and/or sold. Franklin walked around the rooms in the house looking for his property but did not find it. Wallace told Franklin to leave and warned that he could call the police if Wallace did not do so. Franklin hit Wallace and pushed him. Wallace fell over a table and landed on a couch. While Wallace was laying on the couch, Franklin grabbed him by the throat and demanded to know where his property was. Franklin grabbed money protruding from Wallace's pocket as Wallace lay on the couch and Franklin then choked him for a bit longer. After Franklin left, Wallace called the police. Wallace was 67 years old at the time.

Franklin's defense was that he had not taken the money by force or threat of force. Franklin testified that Wallace "came at" him with his hands raised so Franklin hit him in the face and threw him down in "self defense." RT 761. Wallace fell onto the couch; while he lay there, Franklin grabbed his throat, and squeezed it between his thumb and forefinger to apply a kind of accupressure to "relax" Wallace. RT 763, 859. While grabbing Wallace by the throat, he demanded to know where his property was. Wallace told Franklin that he did not know where the property was. Franklin then took money that he saw sticking halfway out of Wallace's pocket. He took the money and intended to keep it; indeed, he intended to get more money later from Wallace. Franklin invited Wallace to call the police but Wallace declined. Franklin also tried to discredit Wallace by showing he had suffered two felony convictions and by showing that they had disliked each other for years.

2. Receiving Stolen Property That Belonged To Ralph Cantor

The prosecution presented evidence that Ralph Cantor was robbed at about 11:30 p.m. on January 18, 1995 when he took his bicycle down a driveway to park it in his garage. When Cantor arrived at the garage area, a man (who he later identified as Franklin) displayed a gun and demanded that Cantor give him money and a watch. Cantor complied. The man threatened to shoot Cantor. The man then walked up the driveway and disappeared from Cantor's sight. Cantor reported the incident immediately to the police. Within a month of the incident, Cantor identified Franklin as the robber in a photo lineup presented to him at his office and in a physical lineup at the Oakland police department. Cantor also identified a watch recovered from Franklin as the watch that had been stolen from him. He was able to identify the watch by its Eddie Bauer brand, its replacement wrist band and scratches on its crystal.

Franklin's defense was that the victim had misidentified him. He tried to show that Cantor's ability to observe the robber was hampered by the darkness of the location and because the robber wore a cap and a hooded jacket. He tried to show that Cantor actually had recognized him in the photo and physical lineups because they had been teachers at the same junior high school in the early 1970s. Franklin also tried to show that the lineups had been unduly suggestive. And he tried to show that inspector Wolke planted the watch in his belongings by showing that the watch was not listed on the original police department property inventory when an officer inventoried the backpack in which the watch allegedly was found.

The prosecution urged that Franklin had robbed Cantor or at least had received stolen property that belonged to him. Franklin was convicted on only the receiving stolen property count.

3. Robbery of Elizabeth Groenewegen

On the night of January 20, 1995, Elizabeth Groenewegen was attacked from behind while walking home from a BART station. A man (who she later identified as Franklin) approached her from behind, grabbed her and tried to cover her mouth with his hands. He told her he would cut her if she screamed. Groenewegen screamed and struggled, causing both her and the man to fall backwards to the ground; Groenewegen then saw the man's face. Groenewegen continued to struggle with the man for control of her shoulder bag containing a purse and clothes. She let go of the bag and the man departed with the bag. Groenewegen's face had been scratched by the man. Groenewegen identified Franklin as the robber in a lineup within a month of the robbery and again identified him at trial.

Franklin's defense to this charge was misidentification by the victim. He challenged Groenewegen's ability to observe the man on the dark and misty night on which the robbery took place. He also presented evidence that he had certain characteristics different from those possessed by the assailant as described by Groenewegen: although the man who attacked Groenewegen was not physically powerful, Franklin was physically powerful and trained in martial arts; although Groenewegen had been scratched by the man, Franklin wore his fingernails cut short for his martial arts activities; although Groenewegen's attacker looked like a "homeless-type," RT 263, Franklin was very neat and well-groomed; although Groenewegen's attacker was unshaven, Franklin had worn a distinctive mustache for years. Franklin also tried to show that the lineup at which Groenewegen identified him was improperly suggestive.

4. Receiving Stolen Property That Belonged To Elizabeth Blakely

At trial, the prosecution presented evidence that Elizabeth Blakely's house was burglarized in the late morning on January 30, 1995 by Franklin and his girlfriend, Sonia Leseur. Blakely was in bed asleep late in the morning when she "heard a knock at the door and the sound of the door being kicked in. Blakely heard a man's voice and a woman s voice coming from the living room although she never saw either person in her house. Blakely heard the woman ask the man whether she should take the stereo and heard the man respond that the woman should take the compact discs and the man would look for the keys. Blakely climbed out of her bedroom window and went next door to have a neighbor call the police. As the neighbor called the police, Blakely watched the front door of her home. A man wearing a backpack pushing her roommate's bicycle and carrying a black bag emerged and then a woman pushing Blakely's bicycle emerged through the front door. The man departed before Blakely saw police arrive, but one police officer arrived in time to detain Leseur. Leseur had dozens of Blakely's compact discs and other property in her backpack. Meanwhile, another police officer who heard the first officer's broadcast that the man was on the sidewalk, caught sight of a man pushing a bicycle away from the house and chased him. The officer lost sight of the man at one point. The officer saw several citizens pointing and he followed their directions into the driveway of Grandma's Bed and Breakfast. There he caught Franklin. Franklin had a backpack containing dozens more compact discs that belonged to Blakely. Blakely never claimed to have seen the face of the male burglar and never identified Franklin as the burglar. When the officer frisked Franklin, he recovered from Franklin's waistband a. pellet gun that looked like a revolver and recovered from Franklin's inner jacket a police badge.

Franklin's defense to this charge was that he was an innocent and unlucky bystander. He said that he had been walking with his girlfriend when an acquaintance named Deek convinced Franklin's girlfriend to go with him for a few minutes for an unstated purpose . . . Franklin waited and went into Grandma's yard so he would be off the street. While he was there, Deek returned, handed a backpack to him, and ran off. Immediately thereafter, the police "apprehended Franklin at Grandma's. Franklin explained that he had found the pellet gun and badge earlier that day. Through cross-examination, Franklin was able to show that there were gaps during which police lost sight of the man being chased. He also presented testimony of a witness who saw a man pushing a bicycle in the area at the time; the witness at one time indicated the man was white or at least had light skin color although he had indicated at another time that the man was African American.

The prosecution urged that Franklin was guilty of burglary of the Blakely residence or receiving stolen property from the Blakely residence. The jury convicted him of receiving stolen property.

C. Franklin's Frame-Up Defense

In addition to his defenses specific to each of the crimes, Franklin offered as a defense to the charges the theory that he was that he was being singled out unfairly by the Berkeley Police Department. He argued that inspector Wolke in particular was trying to frame him because Wolke was unable to arrest him for a murder that Wolke thought Franklin committed. Franklin and another lineup participant testified that during the lineup there was considerable talking and laughing coming from the area where the witnesses were viewing the lineup. They testified that the noise continued until Franklin was asked to step forward and then the noise stopped abruptly. Evidence also was presented that Wolke had twice tried to do polygraph examinations on Franklin in December 1994 concerning the murder case but was unable to complete either exam.

JURISDICTION AND VENUE

This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Alameda County, California, which is located within this judicial district. 28 U.S.C. § 2241(d).

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409, 120 S.Ct. 1495.

EXHAUSTION

Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c).

The parties do not dispute that Franklin exhausted his state court remedies as to his claims that he was denied due process by the "pervasive atmosphere of hostility" at his trial and that he received ineffective assistance of appellate counsel. An interesting exhaustion problem arises because Franklin cites to some federal case law and constitutional provisions in discussing the component parts of his "pervasive atmosphere of hostility" claim. In his federal petition, Franklin cites to federal cases and constitutional provisions in support of his argument that the pervasive atmosphere of hostility was shown by the trial court's denial of his motion to substitute attorneys, the trial court's denial of discovery motions during tha time Franklin represented himself, the use of a suggestive photo lineup, and the denial of his motion to strike a prior conviction. Franklin never presented these to the California Supreme Court as individual violations of his federal constitutional rights. He did, however, cite federal authorities in support of two arguments in support of his "pervasive atmosphere of hostility" claim in his petition for review to the California Supreme Court. Specifically, he cited United States v. Moore, 159 F.3d 1154 (9th Cir. 1998), in support of his argument that hostility was shown by the trial court's denial of his motion to substitute counsel and he cited Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), in support of his argument that hostility was shown by the trial court's denial of his motion to strike a prior conviction. See Petition For Review, pp. 5 and 7. The court will assume for purposes of argument that these two citations in the petition for review sufficiently presented these claims to the California Supreme Court and will explain in footnotes the claims' resolution as if they had been brought as separate claims as well as components of the "pervasive atmosphere of hostility" claim.

DISCUSSION

A. "Pervasive Atmosphere of Hostility" Claim

Franklin claims that a "pervasive atmosphere of hostility towards petitioner, his attorney, and his family permeated his trial and denied petitioner due process of law under the state and federal constitution." Petition, attachment three, p. 1. Franklin wrote that he had "put on the record numerous instances of conduct toward him in this case which indicate trial court error in its rulings, problems with his attorney, hostility of court and judicial system personnel and other offensive behavioral [sic]. . . . The court made ruling after ruling against petitioner many plainly erroneous under the law and others evincing an abuse of discretion. . . . Many of the errors occurring were in and of themselves enough to require reversal. Taken in toto the cumulative effect of the errors and prejudice petitioner suffered add up to denial of Due Process." Id.

The Due Process Clause guarantees a criminal defendant the right to a fair and impartial judge. See In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (fair trial requires the absence of actual bias by the judge). When the question of the propriety of the state court judge's conduct is raised in a habeas action, the inquiry is "whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution." Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995), cert. denied; 517 U.S. 1158, 116 S.Ct. 1549, 134 L.Ed.2d 651 (1996); see, e.g., Ortiz v. Stewart; 149 F.3d 923, 939-40 (9th Cir. 1998), cert. denied, 526 U.S. 1123, 119 S.Ct. 1777, 143 L.Ed.2d 806 (1999) (post-conviction relief judge's evident disdain for petitioner's argument that several of his attorneys were ineffective for failing to discover each other's ineffectiveness simply reflected judge's frustration with the number of petitioners who attempted to manipulate the criminal justice system and did not amount to unconstitutional bias); cf. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) ...


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