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April 8, 2003


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


Andrew Sevey is a California prisoner proceeding pro se, who filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After an initial review, the Court ordered respondent to show cause why the petition should not be granted based on petitioner's three claims. Respondent has filed an answer, along with a memorandum and exhibits. Petitioner has filed a traverse.*fn1


Heather Argyle-Johnson ("Johnson") testified that she lived in a mobile home in Upper Lake, California, which was on the same property as Hartford Horace "Johnny" Gwinn's ("Gwinn") trailer and Don Wilshire's ("Wilshire") cabin. Johnson testified that it was well-known that Gwinn carried a lot of cash from his burl business and from selling methamphetamine.*fn3 Johnson testified that when she arrived home shortly after 2:30 p.m. on April 26, 1995, Wilshire and Cherish Oranje ("Oranje") told her that Gwinn was dead. Johnson found Gwinn's body on the floor of his trailer. She removed a towel from his throat to find that his neck had been cut. She called 911 and emergency personnel, including Deputy Shemff Carl Stein ("Stein"), arrived.

Stein testified there were signs of a struggle inside the trailer. In particular, there was broken furniture; items were scattered on the floor; there were blood splatters; a small dishpan was sitting on top of a water-soaked couch cushion; a piece of cloth had been used to wipe up water from the floor; there were random dots of blood on the kitchen drawers and oven door; there was an arc of blood consistent with a bleeding artery near the couch; and there was blood on the counter and a large area of blood on the back and seat cushions of the couch. Gwinn was lying on his right side on the floor. A paring knife and a pocket torn from a blue and white flannel shirt were under Gwinn's body. His clothing was saturated with blood and water, and there was a large pool of blood and a blood-soaked towel near the body. Methamphetamine was found on Gwinn's bed and in his shirt pocket. No wallet, money or credit cards were found in the trailer.

The pathologist who performed the autopsy testified that Gwinn, who was approximately 5'10" and weighed 170 pounds, had at least thirteen stab wounds, including several to the chest, sides of the head, and left neck, as well as two defensive wounds on his right hand. One of the defensive wounds could have been sustained while the deceased was trying to take a knife away from someone. The wounds could have been inflicted by the paring knife found under Gwinn's body. Gwinn died of the stab wounds and blood loss. He had methamphetamine in his system.

Mike Wagy ("Wagy") testified that he lived in Lake County in 1995 and occasionally worked for Gwinn's burl business. Wagy has a felony conviction for possession of methamphetamine. Between noon and 1:00 p.m. on April 26, 1995, Wagy and his girlfriend Evelyn Dunaway ("Dunaway"), drove Fred Pearl ("Pearl") and Orange to Gwinn's trailer. "One-eyed Eddie" Steiner ("Steiner") was outside the trailer working on Gwinn's truck. Pearl went into the trailer and discussed a drug transaction with Gwinn. When he came out he told Wagy that he had given Gwinn some money. At some point, Dunaway, Pearl, Gwinn, and Oranje all used methamphetamine. Wagy also went inside the trailer briefly. While he was in the trailer, he saw some binoculars and a cross-bow belonging to him. Wagy asked Gwinn about them and also about a scanner that he wanted. Gwinn told Wagy to come back in an hour to discuss them. Pearl, Wagy and Dunaway left after about 45 minutes, after which they visited David Tinney ("Tinney") and Robert Vinson ("Vinson"). Vinson told Pearl and Wagy that his scanner had been stolen. Wagy told him he had seen the scanner in Gwinn's trailer; Wagy offered to ask Gwinn about it. Dunaway went to pick up her daughter. When Dunaway returned, she went with Wagy and Pearl back to Gwinn's trailer. On the way, they saw Chastain's truck near Gwinn's trailer. When they got to the trailer, there were no cars around and the trailer door was open. Pearl found an empty wallet on the ground and tossed it to Wagy and Dunaway. Pearl went into the trailer and called to Wagy that Gwinn was on the floor bleeding. Wagy and Dunaway went to the trailer and Wagy went inside. He found no pulse on Gwinn and the two returned to the car, with Wagy taking his binoculars and cross-bow and Vinson's scanner. Pearl then returned to the car carrying a grinder he said belonged to him.

Wagy testified that he, Dunaway and Pearl drove away, stopping at Wilshire's cabin to tell him that Gwinn was dead. Wilshire said he would take care of the problem, and the group drove on to Vinson's residence where Wagy gave him the scanner. They did not call the police because Wagy was in violation of his parole. When he learned that his car was the last one seen leaving the trailer, he drove the car to petitioner's house and covered it with a tarp; he retrieved it later that night. Wagy kept Gwinn's wallet, and was carrying it when he and Dunaway were arrested three days later. Steiner testified that he was at the trailer when Wagy and the others arrived the first time. Steiner did odd jobs for Gwinn, and had arrived at Gwinn's trailer between 9:00 and 9:30 that morning. While Steiner worked on Gwinn's truck over the next couple of hours, between 25 and 30 people came to the trailer to purchase drugs from Gwinn. Between 2:00 and 2:30 p.m., petitioner arrived with Bobby DeSoto ("DeSoto") and Bobby Chastain ("Chastain") in Chastain's truck. Petitioner was wearing a plaid shirt and black boots. He went inside the trailer while DeSoto and Chastain remained outside with Steiner. After a short time, Steiner heard a "ruckus" inside the trailer and went inside. He saw petitioner bent over Gwinn swinging a knife around. The knife was dripping blood, and Gwinn was on his back on the sofa trying to block the blows. Gwinn did not have any weapons in his hands; his head was cocked back and he was "kind of gurgling." When Steiner grabbed petitioner's wrists, petitioner spun around and looked at Steiner. Steiner saw blood on petitioner's arms and shirt and ran out the door, telling DeSoto and Chastain, who were outside, that he was leaving. He drove off and did not call the police because he was afraid of petitioner.

Chastain testified that he was at Pearl's house on the morning of the killing, and that at about 10:00 or 11:00 a.m., petitioner came over and asked Chastain to help him with some burls. He agreed and they drove to petitioner's house where they shared some methamphetamine with petitioner's girlfriend Tina Hockett ("Hockett"). Petitioner was wearing jeans, black boots and a blue and white checkered shirt. Chastain and petitioner drove to a ranch to get some burls, picking up DeSoto on the way. The job fell through, so the three of them went to Gwinn's trailer to buy drugs. Petitioner told Chastain that he would kill Gwinn if Gwinn did not give them drugs, but Chastain did not take him seriously. Chastain, DeSoto and petitioner arrived at Gwinn's house between 1:30 and 1:45 p.m. and found Steiner working on Gwinn's truck. Chastain went into the trailer to buy drugs, but Gwinn told him he did not have any. Petitioner then came into the trailer and asked to buy a half ounce of methamphetamine for $350. Gwinn told petitioner it cost more than that. Chastain left the trailer and stood next to DeSoto. A couple of minutes later he heard the sound of someone hitting the floor. Steiner ran inside the trailer. After thirty seconds, he came out and drove away. Chastain heard Gwinn make a noise that he likened to the sound a pig makes after its throat is slit. Chastain looked into the window of the trailer and saw petitioner hunched over and straddling Gwinn on the couch. Petitioner was stabbing Gwinn's lower left back. Gwinn had no weapon. Chastain and DeSoto got into Chastain's truck. Petitioner came out and asked for help cleaning up. He had blood on his hands and face. Chastain refused and drove away.

DeSoto's preliminary hearing testimony was read to the jury.*fn4 He had prior convictions for assault, burglary, spousal battery and false imprisonment. DeSoto had worked for Gwinn and had bought methamphetamine from him. DeSoto testified that petitioner and Chastain picked him up around 10:30 a.m. on the day of the killing. Petitioner was wearing jeans, sneakers and a flannel shirt. They drove to a ranch, but the burl work fell through, so they decided to buy drugs from Gwinn. DeSoto gave petitioner $40 for the drugs. When they arrived at Gwinn's property, DeSoto, Chastain and petitioner all got out of petitioner's truck, at which time DeSoto saw Gwinn and Steiner, who was working on Gwinn's truck. DeSoto went over to help Steiner with the truck, and petitioner and Chastain went into the trailer with Gwinn. Chastain came out a few minutes later, and shortly thereafter DeSoto heard a fight inside the trailer. Steiner went to the door of the trailer and looked inside. Steiner backed out of the trailer, jumped in his truck and drove away. Chastain was standing near a window of the trailer. DeSoto looked into the doorway of the trailer and saw Gwinn on the floor lying on his right side. Petitioner was crouched over Gwinn with a bloody knife in his hand. DeSoto did not see any weapon in Gwinn's hands. Petitioner was covered in blood and looked "kind of crazy." DeSoto backed away from the trailer and he and Chastain drove away. After traveling a short distance, they stopped along the road and started to run back to see what had happened to Gwinn. When they got to a creek bed, they stopped and decided to return to the truck, after which they drove off.

Pamela Woodward ("Woodward") testified that on the afternoon of the murder she was waiting for her boyfriend on a road near Gwinn's trailer when petitioner ran out from the bushes wearing a long-sleeved camouflage shirt and jeans and carrying two T-shirts. Petitioner asked her for a ride and she drove him to Tinney's house. Petitioner kept telling her to drive faster and told her not to go back to Gwinn's house. John Carr ("Carr") was at Tinney's house. Carr testified that petitioner was shirtless, aggravated, "very hyper," sweaty and dirty. Petitioner told some people who were there to wash him off with a five-gallon bottle of water. Carr did not see any blood or injuries on petitioner. Petitioner left in a pickup truck with Rick Roberts ("Roberts") and Thurman Mahan ("Mahan"). Roberts and Mahan returned a few minutes later without petitioner, and one of them dropped a bundle of clothing on the ground containing a bloody blue and tan flannel shirt. One of them said, "The crazy son of a bitch just killed Johnny." They went over to a nearby orchard and burned the clothing.

Larry Rogers ("Rogers") lived near Tinney. Rogers testified that he noticed petitioner running around outside his home without a shirt, shoes or socks. Petitioner asked him for a ride to Mike Moitozo's ("Moitozo") shop and Rogers drove him there. Moitozo testified that when petitioner arrived at the shop, he asked for a ride into town. Petitioner's hair was soaking wet, his legs were bleeding from some small scratches, and he was not wearing a shirt. Moitozo did not notice any injuries on petitioner's chest or arms. Petitioner called Judy Stark ("Stark"), the mother of his ex-girlfriend. Stark testified that she picked up petitioner and he seemed to be in a rush. He looked a little rough and dirty and had a scratch on his shoulder. Petitioner had a roll of cash and a plastic baggy of methamphetamine. He asked her for a ride to a casino. She refused, but she drove him to Scott Elliott's ("Elliott") house, where they took methamphetamine. Pat Hanson ("Hanson") arrived and petitioner gave him five one hundred dollar bills to buy petitioner a car. Petitioner also asked Hanson to pick up Hockett and give her some of petitioner's money for groceries. Stark testified that after giving Hanson the money, petitioner still had a roll of cash in his hand.

Charles Becker testified that Hanson, Hockett and Hockett's daughter came over that day, Hockett gave him $500 for a 1976 Mercury Monarch and they drove off in the Monarch to Joe Queen's ("Queen") house. Richard Smith ("Smith"), who was at Elliott's house, testified that he gave petitioner a ride to Queen's house, where he was to meet Hockett. Petitioner had a roll of cash with him, a scratch on his arm, and was wearing tennis shoes, jeans and a t-shirt. Queen testified that petitioner gave him $100 in cash and packed the Mercury with sleeping bags. Petitioner shared some methamphetamine with the others, and told them he had gotten it from Stark. Petitioner gave Hockett money for gas and told her to meet him at a highway intersection. Smith testified that he drove petitioner to the intersection separately, and that petitioner said that if they were stopped by the police, Smith should say that petitioner held a gun to his head.

Hockett testified that she and petitioner left Lake County for the Bay Area in the Mercury. She estimated that they spent about one thousand dollars on gas, food, motels and restaurants between the time they left and petitioner's arrest on May 5, 1995, with petitioner paying from a roll of cash he carried. In the days before they left, petitioner did not have any money, and they had to borrow $275 to pay the rent. On the morning of the killing, Hockett had given petitioner a few dollars and some food stamps to buy food for Hockett's daughter. Petitioner told her that it was a good time to leave so they would not be in the middle of Gwinn's killing. He explained that he had been down the road from Gwinn's property working on burls when Gwinn was killed. The only injury Hockett saw was a mark on petitioner's chest that was scabbed over.

Deputy Stein testified that a search of the orchard near Tinney's house about a month after the killing turned up the burned remnants of a shoe, rivets and buttons from a pair of Levis, and another shoe nearby that was petitioner's size and which Hockett identified as belonging to petitioner. Some of the burned material matched the shirt pocket found under Gwinn's body.

Elliott testified that he was approached by defense investigator David Ell ("Ell") on two occasions, and that Ell told him that petitioner had stated that Elliott had loaned him $700. Elliott testified that he had only seen petitioner on two occasions, that he did not lend petitioner any money, and that he was down to his last $35 on the day of the killing. Stark, Elliott's girlfriend, confirmed that Elliot did not have any money to lend, and Patches Stroud ("Stroud") testified that she had loaned Elliott $20 for car parts around the time in question.

Petitioner testified that on the afternoon of April 26, 1995, he drove to Gwinn's house with Chastain and DeSoto to talk to Gwinn about Gwinn's accusations concerning petitioner's former girlfriend, Marla Howard. Petitioner went into the trailer alone and got into a heated argument with Gwinn, which escalated into a physical confrontation. Steiner entered the trailer in a few seconds and grabbed petitioner's shoulder, while Gwinn stepped forward. Petitioner pushed Gwinn away, but Gwinn picked up a knife and Steiner grabbed both of petitioner's arms. Gwinn was "very angry" and thrust a knife into petitioner's chest. Petitioner grabbed Gwinn's forearm as Gwinn tried to stab him in the side, and Gwinn bit petitioner's chest. Petitioner thought that Gwinn and Steiner were going to kill him. Petitioner punched Gwinn in the face and eventually wrestled the knife away. Gwinn bit petitioner on the biceps and petitioner struck him on the back, and then stabbed Gwinn in the back of the head a few times until Gwinn started to fall down. Petitioner fell on top of Gwinn because he knew Gwinn carried a gun, and Steiner, who had been trying to grab petitioner's arms, ran off. Gwinn was on his back bleeding profusely from his neck. Petitioner wiped his hands on a towel and ran into the hills. Petitioner testified that he did not intend to kill Gwinn or to take his money or drugs, and that he never threatened to harm Gwinn if he didn't give petitioner drugs. He denied taking Gwinn's wallet.

Petitioner further testified that he went to Elliott's house, getting rides from Woodward, Roberts, Mahan, and Stark. He discarded his clothes and shoes along the way because they were covered with blood; he was not bleeding a lot because he had packed his wounds with dirt. He borrowed $700 and clothing from Elliott, using $500 to buy a car and $100 to pay off a loan to Queen. Stark gave him some methamphetamine. Petitioner traveled to San Jose with Hockett because he was scared of what he had done. Petitioner acknowledged that it was well-known that Gwinn had a lot of cash and methamphetamine. He recalled inflicting only three to six stab wounds on Gwinn, who was on his back, not his right side, when petitioner left. Petitioner admitted to prior convictions for possession of a firearm by a felon and for theft. He acknowledged that he changed his story to the police several times.

Deputy Stein testified that on May 7, 1995, petitioner told him that he had heard that Gwinn had been shot and that Wagy, DeSoto and Chastain were involved. Petitioner said that he had heard them talking about taking Gwinn's things and running him out of town. The next day, petitioner told the police that he was cutting burls with Roberts and Mahan near Gwinn's house when Wagy drove up and said that he had just killed Gwinn. Petitioner ran away and got several rides before calling Stark. He eventually got a ride from Smith to Queen's house; he told Smith he had to leave town because he had walked into some trouble. Finally, petitioner gave two written statements. He admitted stabbing Gwinn during a struggle with Gwinn and Steiner, but stated that he did not mean to kill him. He denied giving money to Hockett to buy a car, but admitted giving $300 to Hanson. He stated that Queen and a friend in San Jose had loaned him money, and that he had money from some prior paychecks. He admitted that he had discarded his clothing at the creek after leaving Tinney's house, but stated he did not know how the clothes got burned.

On January 17, 1996, the jury found petitioner guilty of first degree murder, with the special circumstance that the murder was committed in the course of a robbery. The trial court sentenced petitioner to life in prison without the possibility of parole. The sentence included an enhancement for use of a deadly weapon, as well as for prior convictions, service of prison terms and violation of parole. The California Court of Appeal affirmed the conviction, and the Supreme Court of California denied a petition for direct review and a subsequent petition for a writ of habeas corpus.


A. Standard of Review

This Court may entertain a petition for a 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); Rose v. Hodges, 423 U.S. 19, 21 (1975).

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). Habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict."` Penry v. ...

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