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January 9, 2003


The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge.


Oscar Torres Arboleda ("petitioner"), a California prisoner proceeding pro se, filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After petitioner amended the petition, the Court ordered respondent to show cause why the petition should not be granted on the basis of the seven cognizable claims in the original and amended petitions.*fn1 Respondent has filed an answer supported by a memorandum and exhibits, contending that the petition should be denied. Petitioner has filed a traverse.


On October 13, 1982, at approximately 8:20 p.m., Erne Sebero ("Sebero") was shot seven times and killed near the intersection of 25th Avenue and 23rd Street in Oakland, California.

A neighbor, Kevin Gordon ("Gordon"), testified that he was at home at the time and heard an argument in front of his house. He saw a black or Hispanic man walk up to the passenger side of a yellow Ford Mustang and fire three to four shots into the car. The shooter ran up 23rd Street, and the victim got out of the Mustang and fell to the ground. Another neighbor, Daphne Muse ("Muse"), testified that she lived on 23rd Street, about three to four hundred feet from the intersection with 25th Avenue. She heard a shot, and saw from her window a man standing at a fence with his arm raised and holding a gun. She saw the man shoot a person lying prone on the street three times. She also saw a small, compact brown car, perhaps a Pinto or Chevette, nearby; there was a black woman in the driver's seat and a toddler in her lap. She saw the shooter get into the car and drive away. A third neighbor, Javier Madrigal, testified that he was walking by the intersection when he heard gun shots. He saw the driver and his passenger get out of a small yellow car, and then chase after the car when it started rolling backwards. The passenger fell to the ground, and a black man between the ages of 18 and 25 ran up with a gun; the man on the ground waved his arms and said, "Hey man, wait a minute." The gunman fired four or five shots at the man on the ground from about two feet away and then ran up 23rd Street.

Officer Enoch Olivas arrived at the scene and saw Sebero on the ground, alive but covered with blood. He also saw a yellow, two-door Mustang. Police evidence technicians found petitioner's fingerprints on the Mustang's right front fender and the door to the gasoline tank. One of the technicians testified that the age of the prints could not be determined, but that prints on the exterior of a car begin to deteriorate almost immediately because they are exposed to weather.

Sergeant Burham Matthews ("Matthews") testified that he interviewed petitioner's girlfriend, Rena Walton ("Walton"),*fn2 on October 21 and again on November 8, when he arrested her as an accessory after the fact. She initially told Matthews that she did not know anything about the killing, and that she and petitioner had been together at home at the time. After Matthews told her that he did not believe her, she told him that on the evening of the incident she had borrowed her mother's Vega and driven petitioner until they saw Sebero in his car. Petitioner got out of the Vega with a gun in his waistband, fired many shots at the victim, and returned to the Vega. Petitioner told her that he shot Sebero, and Walton drove him to the train station where he took a train to Southern California. Walton explained to Matthews that she initially lied about petitioner and his whereabouts because she did not want petitioner to be arrested.

At trial, Walton testified that her statements implicating petitioner were all lies. She testified that she lived with various family members, including her five-year-old son and her cousins Michael McAdoo ("McAdoo") and Anthony Williams ("Williams"). According to Walton, McAdoo and Walton both had access to the Vega, and Williams had an argument with Sebero about money. She also testified that petitioner and Sebero were friends.

Another neighbor at the scene of the shooting, Charles Lucas ("Lucas"), testified for the defense. Lucas stated that he was working in his front driveway when he heard some people arguing. He then saw a purple Vega stop next to a white or yellow Mustang; someone jumped out of the passenger's side of the Vega and began arguing with the passenger of the Mustang. The Vega passenger pulled the passenger from the Mustang, yelled at him, and shot him several times. Lucas described the gunman as a heavyset black man more than six feet tall with an unkempt beard, whom he thought he had seen several weeks before trial in West Oakland. Lucas identified Walton's cousin Williams as the Vega driver. Lucas testified that he did not tell the police what he saw because he did not like the police. Gary Hooks of the Oakland Police Department testified that he had spoken briefly with Lucas on the night of the shooting and that Lucas had told him he heard some shots but saw nothing because he was in his backyard. Lucas's mother testified that she had seen her son in the front driveway about fifteen minutes before the shooting.

Another neighbor, Elizabeth Gordon ("Gordon"), testified on rebuttal that she saw a Mustang moving slowly along the street with a man walking next to it. The man approached the passenger's side and fired six shots, and another man fell to the street. Gordon, who was in her own car, slumped down, but she nevertheless saw a short, approximately 5'2", man with bushy hair and a gun in his hand run by her toward East 23rd Street.

On June 3, 1983, a jury in Alameda County Superior Court convicted petitioner of first degree murder. The trial court sentenced him to twenty-five years to life for the murder conviction, and to two additional years for the use of a firearm. The California Court of Appeal affirmed the conviction. Petitioner's subsequent habeas petitions in the Supreme Court of California were denied.


A. Procedural Default

Respondent contends that petitioner's claims are procedurally defaulted because in denying petitioner's claims, the Supreme Court of California cited to In re Swain, 34 Cal.2d 300 (1949), In re Dixon, 41 Cal.2d 756 (1953) and In re Waltreus, 62 Cal.2d 218, cert. denied 382 U.S. 853 (1965), all of which set forth various California procedural bars to habeas review. A federal court will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). "For a state procedural rule to be `independent,' the state law basis for the decision must not be interwoven with federal law." LaCrosse v. Kernan, 244 F.3d 702, 704. "A state law ground is so interwoven if the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed." Id. (internal quotation and citation omitted).

In In re Robbins, 18 Cal.4th 770 (1998), the California Supreme Court stated that prior to 1998 it considered both state and federal constitutional law in determining whether to apply the "fundamental constitutional error" exception to untimely and successive petitions. See Park v. California, 202 F.3d 1146, 1152-53 (9th Cir. 2000) (citing Robbins, 18 Cal.4th at 814 n. 34); La Crosse v. Kernan, 244 F.3d 702, 706-707 (9th Cir. 2001) (citing In re Robbins, 18 Cal.4th at 811-12). Thus, a California court's invocation of the Dixon or Swain rule cannot serve as the basis for a procedural default in federal court, at least when the invocation of the rule occurred before Robbins was decided. See Park, 202 F.3d at 1153 (addressing Dixon rule); La Crosse, 244 F.3d at 706-707 (addressing Swain rule). In the instant case, the California Supreme Court denied petitioner's claims on July 3, 1997, November 6, 1997 and February 2, 1998, respectively, all prior to Robbins. Consequently, the Supreme Court's citation to Dixon and Swain do not procedurally bar federal habeas review. Finally, denial of ...

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