The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS;
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Adrian K. Mitchell ("petitioner"), a California prisoner proceeding
pro se, filed this habeas corpus petition pursuant to
28 U.S.C. § 2254. After the petition was dismissed with leave to
amend, petitioner filed an amended petition containing five cognizable
claims for relief.*fn1
The Court ordered respondent to show cause why the
petition should not be granted. Respondent filed an answer supported by
a memorandum and exhibits, contending that the petition should be denied,
and petitioner filed a traverse.
On November 21, 2002, the Court ordered an evidentiary hearing to
resolve petitioner's claim that his Sixth Amendment right to the
effective assistance of counsel was violated insofar as counsel failed to
investigate and call Charles Mitchell,*fn2 as a
witness.*fn3 An evidentiary hearing was held on March 1, 2004 and
the matter was argued on March 2, 2004. Petitioner was represented by
counsel at both proceedings. At the hearing, petitioner presented the
testimony of six witnesses, including himself, and numerous exhibits were
entered into evidence. The parties also filed a number of stipulations
prior to the hearing and entered into others during the hearing.
In 1998, a jury in Alameda County Superior Court convicted petitioner
of first degree burglary based on his entry into the home of the Gonzalez
family in Oakland, California, in the early morning hours of November 17,
1996. Petitioner was sentenced to thirteen years in state prison. The
ineffective assistance of counsel claim at issue in this Court's
evidentiary hearing was not raised on direct appeal. Rather, it was
raised in a habeas petition in the state superior court and thereafter in
a habeas petition in the state appellate court. Both of these petitions
were summarily denied. Petitioner then presented the claim to the
California Supreme Court in a petition for direct review, which petition
likewise was summarily denied.
Members of the Gonzalez family testified that on November 17, 1996,
they were sleeping in their home in Oakland, California, when, at
approximately 2:00 a.m., they were awakened by petitioner.
Janneth Gonzalez testified that she was sleeping in the bedroom she
shared with her infant son and her sister Laura. The closet light had
been left on and the closet door was slightly ajar to provide light in
the room. Janneth awoke and heard someone running from
the kitchen. She saw petitioner run into the room and into the
closet and close the door. Janneth thought petitioner said, "Call the
police." Laura testified that she awoke and heard someone pulling down
some cassette tapes in the closet. She saw petitioner opening and closing
the closet door. Two or three times he told her, "Don't call the police."
Janneth testified that two days before the incident, a bag of cassette
tapes had been on the floor of the closet; Laura testified that on the
day of the incident itself, the tapes had been on the front edge of the
upper shelf of the closet.
Reynaldo Gonzalez ("Mr. Gonzalez"), Janneth and Laura's father,
testified that he was awakened by a loud noise; he went out into the
hallway where he met his daughters. They told him that a man was in their
bedroom closet. Mr. Gonzalez and his son Gerardo then entered the bedroom
and found petitioner in the closet. Petitioner was facing away and
appeared to be going through the clothes in the closet. Gerardo and Mr.
Gonzalez testified that petitioner tried to push his way past Mr.
Gonzalez, at which time Mr. Gonzalez restrained him and there was a
struggle. Mr. Gonzalez testified that petitioner then lifted a mattress
up in front of himself. Gerardo testified that petitioner initially said
several times, "Don't call the police" and that after the struggle
petitioner said, "Call the police." Eventually, petitioner stopped
resisting, and Mr. Gonzalez's brother-in law came in and guarded
petitioner with a knife while Gerardo called the police.
Both Mr. Gonzalez and Janneth testified that they did not hear any
knocking on the front door before petitioner entered the house.
Oakland Police Officer Frank Morrow ("Officer Morrow") testified that
when he arrived at the Gonzalez home, he noted that petitioner appeared
to be under the influence of a stimulant. Petitioner was sweating and
breathing hard; he said something like "They're chasing me"; and he
responded incoherently to Morrow's booking questions.*fn5 Morrow
testified that crack cocaine can induce paranoia and excitability. Other
one window through which petitioner entered, nothing in the home
Petitioner testified that he entered the Gonzalez house because he was
being chased by a man to whom he owed money. Petitioner testified that he
was addicted to crack cocaine and used heroin. He would sell drugs for
people he knew and, in exchange keep some of the drugs for himself.
Sometimes he would use all of the drugs instead of selling them and, as a
result, became indebted to various people; he had frequently been
threatened because of his debts. Petitioner had been using cocaine for
three days prior to his entry into the Gonzalez home. Petitioner further
testified that, at about 2:30 or 3:00 a.m. on the day of the alleged
burglary, a car with four black men inside pulled up beside petitioner
and someone inside said "Break yourself," meaning give up your money or
your drugs. Petitioner ran away, and although he did not look behind him,
he thought someone was chasing him because he heard a car door shut.
Petitioner ran onto the porch of the Gonzalez home and knocked loudly for
a few seconds but there was no answer. He looked back and did not see the
car. Because he still feared the men, however, he broke through a living
room window and fell into the house. He went into a bedroom closet in the
rear of the house to avoid gunfire and told someone to call the police.
He did not touch anything in the closet. Petitioner did not try to get
away from Mr. Gonzalez. He raised a mattress in front of himself as
protection from gunfire. He told the police that he was being chased.
Petitioner testified that he did not steal to buy drugs, and that he
did not need the money because he still had cocaine inside his mouth when
he entered the Gonzalez home, although he stated he swallowed it in the
police car. Petitioner's girlfriend testified that petitioner sometimes
used drugs and that when he did, he acted paranoid and scared.
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." ...