IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
August 24, 2005
TOMMY LONNELL RAMSEY, JR., PETITIONER,
DAVID L. RUNNELS, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING AS UNNECESSARY REQUEST FOR EXTENSION OF TIME TO FILE REQUEST FOR CERTIFICATE OF APPEALABILITY AND GRANTING IN PART REQUEST FOR CERTIFICATE OF APPEALABILITY (Docket nos. 54, 55)
Petitioner Tommy Lonnell Ramsey, Jr., a prisoner of the State of California, filed this petition for a writ of habeas corpus challenging the validity of his State conviction. In an Order dated February 22, 2005, the Court denied the petition on the merits. On March 21, 2005, Petitioner filed a notice of appeal and an application for a certificate of appealability (COA).*fn1 For the reasons discussed below, the Court GRANTS in part and DENIES in part Petitioner's request for a COA.
Petitioner was convicted by a jury in Alameda County Superior Court of one count of first degree murder, two counts of attempted murder, one count of assault with a firearm and two counts of possession of a firearm by a felon. On February 7, 1992, he was sentenced to two consecutive indeterminate life terms and a determinate term of thirteen years in State prison. Thereafter, his challenges to his conviction were rejected on direct appeal and on habeas corpus review by the State courts.
This Court denied on the merits the following claims raised by Petitioner in his federal habeas corpus petition: (1) ineffective assistance of trial counsel based on counsel's failure to argue that two rifles were the product of illegal searches and should have been suppressed, counsel's failure to object to the trial court vacating Petitioner's time waiver and setting an early trial date, and counsel's failure to call Tasha Tugman as an alibi witness; (2) ineffective assistance of appellate counsel based on appellate counsel's failure to argue that trial counsel was ineffective; (3) prosecutorial misconduct based on the prosecutor's failure to correct the trial court's misimpression at the suppression hearing that Petitioner was not in custody when he told police about a second rifle and accompanied them to recover it; and (4) error based on the trial court order vacating Petitioner's time waiver, thereby forcing him to go to trial with an inadequately prepared defense.
Petitioner seeks a COA with respect to each claim raised in his federal petition, with the exception of the claim of trial court error based on the order vacating Petitioner's time waiver and the claim of ineffective assistance of counsel based on counsel's failure to object to that order. Petitioner also seeks to appeal this Court's denial of his request for an evidentiary hearing, arguing that the Court determined erroneously that his failure to develop the facts in State court was due to a lack of diligence on his part.
CERTIFICATE OF APPEALABILITY
A judge shall grant a COA "only if the applicant has made a substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). This requires an overview of the claims in the habeas petition and a general assessment of their merits. It does not require full consideration of the factual or legal bases adduced in support of the claims. Miller-El v. Cockrell, 537 U. S. 322, 336 (2003). Nor does it require a showing that the appeal will succeed. Id.; accord Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (issuance of COA is not precluded merely because petitioner cannot meet standard for actually obtaining habeas relief). The question is the debatability of the underlying constitutional claim, not the resolution of that debate. Miller-El, 537 U.S. 342.
Except for substituting the word "constitutional" for the word "federal," § 2253(c)(2) codified the standard announced by the United States Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983). See Slack, 529 U.S. at 483. In Barefoot, the Court explained that "a substantial showing of the denial of [a] federal right" means that a petitioner "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner], or that the questions are adequate to deserve encouragement to proceed further." 463 U.S. at 893 n.4 (citations and internal quotations omitted; emphasis in original). Any doubts about whether the Barefoot standard has been met must be resolved in the petitioner's favor. See Lambright, 220 F.3d at 1024-25.
The COA must indicate which issues satisfy the § 2253(c)(3) standard and the Court of Appeals is limited to considering only those claims. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir. 1999).
I. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
A. Failure to Argue Two Rifles Should Have Been Suppressed
1. Suppression of Rifle Based on Illegal Search
At trial, Petitioner filed a motion to suppress all evidence obtained as the result of a warrantless search of the Pitts apartment on January 28, 1991. The trial court found that the warrantless entry of police into the apartment was unlawful and therefore the seizure of a .25 caliber pistol used to arrest Petitioner for being an ex-felon in possession of a firearm was illegal and that evidence was suppressed. However, the trial court also found that subsequent consent to search the apartment was given voluntarily by Ms. Pitts to Sgt. Mercado, and evidence resulting from that search---a .25 caliber automatic pistol, a .223 caliber assault rifle, a .355 caliber magnum 6-shot revolver, a .22 caliber rifle, a .38 caliber revolver, ammunition, a ski mask and a Raiders jacket--was admissible.
On direct appeal, Petitioner argued that the trial court erred when it denied his motion to suppress the rifle found after Sgt. Mercado obtained Ms. Pitts's consent to search. The Court of Appeal rejected Petitioner's argument, finding that Ms. Pitts's consent to the search of her apartment was voluntary and that the evidence found by the officers was not tainted by the illegal entry.
Petitioner raised an ineffective assistance of counsel claim on State habeas and in his federal habeas petition based on trial counsel's failure to argue that testimony by Officer Vierra about statements he made to Sgt. Mercado after he searched the apartment was false and therefore evidence of the rifle found at the Pitts apartment should be suppressed. This Court found that the State habeas court's rejection of Petitioner's ineffective assistance of counsel claim was not contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984), because Officer Vierra's testimony, even if false, was relevant only to the seizure of the .25 caliber pistol, and that evidence was suppressed. Moreover, the rifle that was found in the search and admitted at trial resulted from Ms. Pitts's voluntary consent. Therefore, counsel's failure to move to suppress evidence of the rifle based on Officer Vierra's statements was not deficient performance and could not have been prejudicial to Petitioner.
In his request for a COA Petitioner argues that this Court erred by analyzing his claim as one challenging the veracity of Officer Vierra's statements, when actually he is challenging the fact that counsel incorrectly argued the motion to suppress because he did not argue that the consent obtained by Sgt. Mercado from Ms. Pitts was based on statements made by Officer Vierra which were the direct result of observations obtained from his illegal entry into the apartment. Accordingly, Petitioner argues that Ms. Pitts's consent to search was tainted and all evidence taken from the apartment should have been suppressed.
Petitioner mis-characterizes the Court's analysis of his claim. Petitioner's State and federal habeas petitions challenged the veracity of Officer Vierra's statements and counsel's failure to object thereto. The Court addressed this claim. The Court also addressed Petitioner's claim that counsel was ineffective for failing to move to suppress evidence of the rifle because Ms. Pitts's consent was not voluntary in that it was the result of statements made by Officer Vierra to Sgt. Mercado after Officer Vierra's illegal search. As to the latter question, the Court finds that reasonable jurists could resolve differently the question whether counsel should have pursued the issue of tainted consent based on Officer Vierra's illegal entry. See, e.g., United States v. Bautista, 362 F.3d 584, 592 (9th Cir. 2004) (third party's consent to search was tainted where there was no "significant intervening time, space, or event" between the officer's illegal entry and consent); United States v. Oaxaca, 233 F.3d 1154, 1158 (9th Cir. 2000) (sister's consent to search was fruit of the Government's warrantless entry and arrest). Accordingly, the application for a COA is GRANTED with respect to this claim.
2. Suppression of Rifle Based on Illegal Custody
At trial Jerome Enoch testified under a grant of immunity that he was present the night that Petitioner and Tavio Hicks used two assault rifles to shoot James Hayes and Carlota Montalvo. He testified that after the shooting he returned with Petitioner to the Pitts apartment, where Petitioner stored the two rifles. He testified further that several days later one of the assault rifles came to be stored at his house, and within the next couple of days Petitioner came to the house with another individual to retrieve the second rifle.
At the suppression hearing, witness testimony established that following the search of Ms. Pitts's apartment on January 28, 1991, Petitioner was detained for being a felon in possession of a firearm and was taken to jail. He was not charged with a criminal offense, however, and was released on January 29, 1991. While detained, Petitioner told Sgt. Mercado that a second rifle could be found at Jerome Enoch's house. Petitioner then accompanied Sgt. Gaston to Jerome Enoch's house and retrieved the rifle for the police.
The trial court found that Petitioner's arrest was illegal and therefore one of the statements he made at the jail while being interviewed by Sgt. Mercado was inadmissible. With respect to the second rifle, however, the trial court found that Petitioner gave information about the second rifle to Sgt. Mercado at or about the time of his release on January 29, and ruled that this information, as well as Petitioner's activities in going to Jerome Enoch's house to pick up the second rifle and the rifle itself, would not be suppressed. Trial counsel did not object to the court's ruling. Upon review of Petitioner's habeas corpus claim, this Court found that,
[t]he record is not clear as to when exactly Petitioner told police about the second rifle and took them to find it. Evidence referred to by Petitioner of his interviews with police suggests that these events occurred on January 28, 1991, while Petitioner was being detained at the jail. However, testimony by Sgt. Mercado and Sgt. Gaston is less clear about the specific time, and the trial court found that the events took place at or about the time of Petitioner's release on January 29, 1991.
Order at 24-25 (Feb. 22, 2005).
The Court concluded, however, that Petitioner could not establish that counsel was ineffective because he had not shown that there was a reasonable probability that, if counsel had challenged the admission of the statements and the second rifle, the result of the proceeding would have been different. See Strickland, 466 U.S. at 697. Specifically, evidence of the second rifle supplied no information that was not provided already by the first rifle because Lansing Lee, the criminalist expert, testified that both rifles were used in the Williams shooting and in the Hayes shooting. Thus, even if the second rifle had been excluded, the trial court had admitted properly an identical weapon found in Petitioner's bedroom and linked to two of the shootings. Therefore, the existence of a second rifle linked to Jerome Enoch and also used in both crimes did not appreciably add to the evidence of Petitioner's guilt.
In support of his COA application Petitioner reasserts his habeas corpus argument that the information regarding the second rifle was obtained unlawfully because Petitioner still was in custody pursuant to an illegal arrest at the time he spoke with Sgt. Mercado, and counsel should have argued for suppression of his statements and evidence of the second rifle. The Court finds that reasonable jurists could resolve differently the question whether admission of evidence of the second rifle was prejudicial to Petitioner, especially if admission of evidence of the first rifle was erroneous, as argued in Petitioner's first claim. Accordingly, the request for a COA is GRANTED as to this claim.
B. Alibi Witness Tasha Tugman
Petitioner claims that trial counsel was ineffective because he failed to call as an alibi witness Tasha Tugman, whom Petitioner testified he was with at the time of the Hayes murder. The Court found this claim to be without merit because the record did not support Petitioner's assertion that counsel failed to call her as a witness (she was called but did not appear) and, even if counsel did not call her, that decision was clearly a tactical one, based on a thorough investigation of her potential testimony.
Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, the request for a COA is DENIED as to this claim.
II. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CLAIM
The Court GRANTS the request for a COA as to Petitioner's claims of ineffective assistance of appellate counsel based on the failure to raise on appeal claims of ineffective assistance of trial counsel pertaining to admission of the rifle evidence against Petitioner. The Court DENIES the request for a COA as to Petitioner's claim of ineffective assistance of appellate counsel based on the failure to raise on appeal a claim of ineffective assistance of trial counsel for failure to call Tasha Tugman as an alibi witness.
III. PROSECUTORIAL MISCONDUCT CLAIM
Petitioner alleges prosecutorial misconduct based on the prosecutor's failure to correct the trial court's misimpression at the suppression hearing that Petitioner was not in custody when he told police about the second rifle and accompanied them to recover it. The Court denied this claim because the record did not support a finding that the prosecutor knowingly suppressed information which would have led the trial court to conclude that Petitioner was in custody at the relevant time. The Court concluded further that even if the prosecutor did so, his conduct did not render the trial fundamentally unfair because, as discussed above, evidence of the second rifle supplied no information that was not provided already by the first rifle, nor did its existence appreciably add to the evidence of Petitioner's guilt for the offenses.
The Court finds that reasonable jurists could resolve differently the question whether the record supports a claim of prosecutorial misconduct and whether such conduct rendered Petitioner's trial fundamentally unfair. Accordingly, the request for a COA is GRANTED as to this claim.
IV. EVIDENTIARY HEARING
After briefing by both parties on the merits of the petition was completed, Petitioner moved the Court for an evidentiary hearing on his claims of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, prosecutorial misconduct, and denial of the right to counsel based on the trial court order vacating Petitioner's time wavier, none of which was raised on direct appeal. The Court denied the request, finding that: (1) a factual basis existed in the record to support the majority of Petitioner's claims, and for those claims unsupported by the record it was not clear that such facts could not be gathered by way of mechanisms short of an evidentiary hearing, such as supplementation of the record with sworn declarations from the pertinent witnesses; and, in the alternative, that (2) even if no factual basis existed in the record to support Petitioner's claims and they required further development, it appeared from the record that Petitioner had failed to develop his claims in State court due to a lack of diligence. The Court determined that Petitioner had not met the requirements under 28 U.S.C. § 2254(e)(2) for obtaining an evidentiary hearing when facts have not been developed due to lack of diligence. Specifically, Petitioner had not alleged that he was entitled to a hearing based on a new rule of law and there was no evidence which suggested that the factual predicate of his claims could not have been discovered previously through the exercise of due diligence. § 2254(e)(2)(A) & (B).
Petitioner now requests a COA on the question whether the Court properly denied his request for an evidentiary hearing. He alleges that the Court determined erroneously that he did not act with due diligence in seeking to develop his claims in State court. Because reasonable jurists could resolve differently the question whether the Court should have granted Petitioner's request for an evidentiary hearing, the request for a COA is GRANTED with respect to this claim.
For the foregoing reasons, the Court DENIES as unnecessary Petitioner's request for an extension of time file a request for a COA and GRANTS the request for a COA with respect to Petitioner's claims of: ineffective assistance of trial counsel based on the failure to argue for suppression of the evidence of the rifle obtained from the Pitts apartment and the evidence of the second rifle; ineffective assistance of appellate counsel based on counsel's failure to raise those claims on appeal; prosecutorial misconduct based on the prosecutor's failure to correct the trial court's misimpression that Petitioner was not in custody when he gave information which led to discovery of the second rifle; and this Court's erroneous denial of Petitioner's request for an evidentiary hearing. The request for a COA is DENIED as to all other claims.
The Clerk of the Court shall process the appeal.
IT IS SO ORDERED.