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March 11, 2004.

ROBERT AYERS, JR, Respondent

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

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 Page 2 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 Page 3 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 than the Page 4 one window through which petitioner entered, nothing in the home was disturbed.*fn6

  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." ...

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