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SMITH v. PLILER

August 28, 2003

KEITH LAMONT SMITH, PETITIONER, V CHERYL PLILER, WARDEN, RESPONDENT


The opinion of the court was delivered by: Vaughn Walker, District Judge

ORDER

Petitioner Keith Lament Smith seeks a writ of habeas corpus under 28 U.S.C. § 2254. Smith claims that "the trial court erroneously allowed the jury to consider as evidence of guilt numerous unsworn hearsay statements allegedly made by the [murder] victim." Doc # 1 at 3. Smith also contends that he received ineffective assistance of counsel because his trial attorney "failed to object to hearsay statements * * * that were introduced against petitioner in violation of his right to confrontation under the federal constitution." Id. For the reasons set forth below, Smith's petition for writ of habeas corpus (Doc # 1) is DENIED. [ Page 2]

I

On April 29, 1996, a jury found Smith guilty of murdering Michael Hadden, a violation of California Penal Code § 187. Doc # 15, Exh C at 3089-90. The jury also found that during the murder, Smith was armed with a handgun, acted as one of the principals in the offense and knew that one of the other principals was also armed. Id at 3090. Finally, the jury found that "during the commission and attempted commission of the above offense, [Smith] committed the above offense for the benefit of, at the direction of and in association with a criminal street gang with the specific intent to promote, further an[d] assist criminal conduct by gang member." Id.

After several enhancements, including one based on a prior conviction for a serious felony, Smith was sentenced to sixty years to life in prison without the possibility of parole. Doc # 15, Exh B at 101-05. Smith's co-defendant, Leroy Coleman, was also convicted in connection with Hadden's murder and was sentenced to 200 years to life in prison. People v Coleman, slip op at 24 (Cal Ct App. Feb 5, 1998) (Doc # 15, Exh G).

On February 5, 1998, the state court of appeal affirmed Smith's conviction. Id at 1. Smith's petition for direct review was denied by the California Supreme Court on April 30, 1998. Doc # 15, Exh I.

On April 23, 1999, Smith filed a petition for a writ of habeas corpus with the California Supreme Court. See Doc # 15, Exh K and L. The petition was denied on May 12, 1999. See Doc # 15, Exh K and N. [ Page 3]

On July 27, 2000, Smith filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. Doc # 1. Respondent filed its response on July 10, 2002. Doc #13-15. On October 9, 2002, Smith filed a traverse. Doc # 22.

II

The court of appeal summarized the facts of the case as follows:

A Discovery of the Bodies

On April 29, 1994, * * * [police officers] found the body of a man, later identified as 34-year-old Michael Hadden, lying on his back with a large pool of blood under his head. Paramedics were unable to resuscitate him and he was declared dead.
[On that same evening], two California Highway Patrol officers stopped to investigate [an abandoned] Hyundai. Its engine was running and the keys were in the ignition. A male, later identified as 17-year-old Dwayne Forsen, was lying dead in the passenger seat, slumped over toward the driver's seat. * * * A document in the glove box indicated that the car had been rented to Michael Hadden on April 27.
B Michael Hadden and the 415
According to prosecution witness David Miranda, a correctional officer at San Quentin State Prison assigned to the security investigations unit, the 415 was founded at Folsom State Prison sometime in 1984 by Leonard Fulgham, also known as Mousy Brown. * * * Miranda interpreted letters sent from Fulgham in Prison to appellant Keith Smith as giving the latter total control of the Oakland area under the 415 organization, including narcotics trafficking and other criminal activity.
Lloyd Hadden, Jr (Lloyd), Michael Hadden's older brother, was sentenced to prison in 1993. * * * Smith was in charge of the 415 at the prison, and Lloyd became a member. According to Lloyd, "You couldn't do nothing in Solano without Keith's authority." [ Page 4]
About two weeks after Smith was released/ Lloyd telephoned him from prison to see whether he had started taking back the territory again for 415. When Smith complained that no one would front him any money or give him any dope, Lloyd suggested his brother Michael as a money source. Lloyd explained that although Michael Hadden had never been to jail/ he was an opportunist who liked to make loans and be paid back double. Lloyd asked Michael to help Smith, and Michael said he could probably get "ten" for Smith/ which meant $10,000.
Felicia Hadden was Michael Hadden's wife. Shortly before he was killed, he told Felicia they were "financially in a bind" and directed her not to use any of their credit cards. Curious, she called the credit card companies and learned that he had taken cash advances totaling about $12/000 on the two cards. Hadden then told her he had to give the money to Smith; he said he had to do whatever he told him to until his brother Lloyd got out of jail.
Felicia said she was not familiar with the 415. However, she acknowledged that before his death, Hadden had asked her to type and make copies of some written material he had prepared concerning 415, including by-laws and flow charts of its chain of command. Michael told her the papers were for Smith. Felicia spoke to her husband on the telephone in the afternoon on the day he was killed. He had taken that day off from work, and he told her he had to go open up a business for Smith. He said he had to meet with Smith and some guys that night.
Dwayne Forsen had been living with the Haddens for about a month before he and Hadden were killed. Felicia said that Hadden was like a father to Forsen.
C Testimony by Marvin "Tiny" Jones
Marvin "Tiny" Jones became a member of 415 in 1993 while he was serving time at the Vacaville penitentiary.
In February 1994, Jones began attending Saturday 415 meetings in Oakland that were organized by Smith and attended by 20 or 30 people. On Wednesdays smaller meetings were held of "the circle," those higher up in 415. Smith, also known as "Hot Lips," was the "overseer" and had the most authority. Immediately below Smith in rank was Hall, the "captain." Devon "Joker" Hawkins was junior commander, Jones himself was the lieutenant, appellant Coleman was the sergeant at arms, and Charles "Bam-Bam" Woods, the minister of education. [ Page 5]
On Friday afternoon, April 29, Hawkins informed Jones that there was a meeting at the schoolyard across from the cemetery. Jones arrived sometime after 5 p.m. Michael Hadden, Hall, Woods, Smith, and Coleman were already there, talking.
Smith told them to meet him on Sunnyside, and he and Hall got into Hall's car. Coleman and Hadden got into the latter's Thunderbird. Hawkins, Woods, and Jones got into Woods's car, which was parked behind the Thunderbird. As Jones watched, Coleman reached over toward Hadden's face and shot at him. Hadden jumped from the car and ran across the street toward the cemetery; Coleman ran after him, a .357 in his hand. Coleman followed Hadden into the cemetery and shot him. * * * Coleman got into Woods's car and they drove to Sunnyside and 92nd Streets. Hall and Smith were already there.
Forsen, whose nickname was "White Lightning," arrived in another rental car. He asked where Hadden was. Jones said he didn't know and no one else responded. Jones believed Forsen was going to be killed because he was asking questions about Hadden. Forsen agreed to take Jones to San Francisco, and Jones got into the driver's seat of Forsen's car * * * [and Coleman got in the back seat].
Just before they drove onto the freeway, Coleman shot Forsen once. * * * Woods drove up and parked behind the Hyundai; Hawkins was with him. Jones and Coleman got into Woods's car.
On Saturday, April 30, there was a 415 meeting at Arroyo Park. At some point Smith asked where Hadden and Forsen were. He said, "They better have a good reason not to show up." Smith also pulled Jones and Coleman aside, gave them each $200, and said it was "for what happened yesterday." He said they would get the rest later. Jones believed Smith was referring to the murders of Hadden and Forsen.
Jones said that as the overseer, Smith was the only person with authority to call a 415 meeting. Smith also was the only person with authority to order someone killed on the streets. One of the rules of 415 was "First man to lie first man to die." The punishment in 415 for treason or deception was death.
Jones acknowledged that he had also been charged with murder based on Hadden's killing and that his trial was upcoming. [ Page 6]
D Testimony by Charles "Barn-Bam" Woods
Charles "Barn-Bam" Woods became a 415 member while in Solano State Prison, where he met Smith. Smith was "running everything" in the segregation wing. Several months after Woods was released from prison in 1993, he began attending 415 meetings in Oakland, which were organized by Smith, the overseer.
Woods said that he and Hadden became very good friends, and Hadden told him he had loaned money to Smith. When Woods's car broke down, Hadden rented a car for him and Forsen to share; Hadden also rented a second car, a Hyundai, for his wife.
On the evening of April 29, Hawkins called Woods and told him to be at a meeting that night. Woods drove to the meeting in the rental car. At the meeting * * * Hall approached Woods and said, "We're about to smoke that fool, Mike." Woods thought Hall meant they were about to kill Hadden. Woods replied only, "Yeah, is that right?" He didn't know what to think; he wondered why they were trying to kill his partner Mike. * * * When the meeting broke up. Smith directed Coleman to get into Hadden's car and told Jones to get into Woods's car with Hawkins.
Woods, now in his car, saw Hadden exit his car and run across the street to the cemetery. * * * Hadden collapsed [and] Coleman ran across the street, stood over Hadden's body, and fired into his head, three or four times.
They drove to Sunnyside, between 92nd and 94th, where Smith had told them to go [and] * * * arrived [there] at about the same time as Smith and Hall. Forsen arrived in the white Hyundai and asked about Hadden. Smith told Jones and Coleman to get into the car with Forsen and told Woods to follow them. Woods heard Smith telling Coleman that he would pay him the rest of the money tomorrow.
Coleman, Jones, and Forsen left in the Hyundai. * * * Woods followed the Hyundai to the freeway. Suddenly he saw its passenger window shatter; some of the glass hit his front windshield. Woods followed the Hyundai onto the freeway, where it stopped. Woods pulled up behind it.
Jones got out of the car, his shirt drenched in blood. * * * Coleman and Jones got into Woods's car, laughing [ Page 7]
about how blood was coming out of Forsen's head. Woods was praying for his life, thinking that they were going to shoot him.
At the regular Saturday morning meeting on April 30, Smith called the meeting to order and then asked where Hadden and Forsen were. He said that they better be dead or in the hospital for them to be missing the meeting. Smith and the others laughed, a "little sneaky laugh."
Coleman, slip op at 2-8 (Cal Ct App. Feb 5, 1998) (Doc # 15, Exh G), The court also addressed testimony given by Hadden's wife, Felicia Hadden (Felicia), his father, Lloyd Hadden, Sr, and Charles Woods concerning Hadden's fear of Smith:
Lloyd Hadden, Sr, testified that about a week before [Hadden's] death, [Hadden] said that if anything happened to him, Keith Smith would be responsible and that Smith had been threatening him. Felicia Hadden testified that when she asked about the cash advances, [Hadden] said he had to give the money to Keith Smith. She also said that when Michael had her type the 415 documents, he told her he was doing it for Keith Smith. Charles Woods testified that two weeks before Hadden was killed, [Hadden] said that Keith Smith wanted to discipline him for telling the girlfriend of a 415 member to "put a restraining order" on that member.
Id at 8-9.

III

Smith claims "that he was denied his rights under the Fifth, Sixth and Fourteenth Amendments of the federal Constitution when the trial court erroneously allowed the jury to consider" hearsay statements allegedly made by murder victim, Michael Hadden. Doc # 22 at 2. Smith also contends that he received ineffective assistance of counsel because his attorney, Walter ...


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