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ADAMS v. WOODFORD

October 6, 2005.

MICHAEL DELANO ADAMS, Petitioner,
v.
JEANNE S. WOODFORD, Director of the California Department of Corrections Respondent.



The opinion of the court was delivered by: LOUISA PORTER, Magistrate Judge

REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Michael Delano Adams, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28, United States Code, section 2254. He challenges his San Diego Superior Court conviction for second degree murder on three grounds: (1) denial of his Sixth Amendment right to effective assistance of counsel when the trial court allegedly erred by denying his substitution of counsel motion under People v. Marsden, 465 P.2d 44 (1970); (2) the trial court failed to instruct the jury pursuant to California Jury Instruction, Criminal 17.01, which required the jury to unanimously agree on the act or acts Petitioner committed that supported his conviction of second degree murder; and (3) the allegedly inadequate performance of his trial counsel resulted in a violation of his right to due process and his Sixth Amendment right to effective assistance of counsel. (Docket Nos. 1, 12, 23.)

The Court has considered the Petition, Respondent's Answer and Memorandum of Points and Authorities, Petitioner's Traverse and all the supporting documents submitted by the parties. Based upon the documents and evidence presented in this case, and for the reasons set forth below, the Court recommends that the Petition be DENIED and the case be dismissed with prejudice.

  II. Statement of Facts

  This Court gives deference to state court findings of fact and presumes them to be correct. Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). In the present case, Petitioner has not attempted to rebut the factual findings made by the state court.*fn1 The following facts, therefore, are taken verbatim from the California Court of Appeal's opinion in Petitioner's case.

  FACTUAL BACKGROUND

  A. Prosecution's Case

 
On January 18, 1999, Robert Stratton and [Petitioner] Adams went to the Chee-Chee Club, where Byron Peterson introduced himself to the men and joined them for cocktails. The men were overheard talking about having sex. Later, the three left the bar and drove together in Stratton's recreational vehicle ("RV") to a liquor store.
Sometime later, Richard Cowan, an acquaintance of Adams, saw Adams and Peterson standing next to Stratton's RV. Cowan offered Adams $10 to drive him to a check-cashing establishment. Adams agreed but adamantly refused to take Cowan's friend Joe. On entering the vehicle, Cowan noticed Stratton's body on the floor. Adams and Peterson told Cowan that Stratton had passed out. Peterson then dragged Stratton to the back of the RV.
When the check-cashing establishment refused to cash Cowan's check, the men drove the RV to an apartment complex. Adams removed a television and VCR from the vehicle and sold them at the complex. Adams was nervous during the sale. While Adams was selling the electronic equipment, Cowan walked to the back of the RV to use the toilet. As he walked through the RV, he tripped over Stratton. Cowan noticed Stratton's hands were tied behind his back with a belt and that he was dead. When Adams returned, Cowan asked him what was "up." Adams and Peterson suggested the men keep the matter to themselves. Cowan stated he was leaving, got out of the RV and called the police.
When officers responded, Adams and Peterson were still in the vehicle. The police ordered them out, entered the RV and found Stratton's body. The officers noted Adams had a three-inch long red scrape on his forearm and a scratch on his back.
Stratton died from blunt-force trauma and asphyxia due to strangulation. At the time of his death Stratton was 69 years old. B. Adams' Defense
Adams testified he and Stratton introduced themselves to Peterson at the Chee Chee Club. Stratton was "smitten" with Peterson. After the men used cocaine in the RV they decided to purchase more cocaine and then go to Sunset Cliffs. Before doing so Stratton used more cocaine and became paranoid. Adams told him everything was alright. When Stratton tripped trying to leave the vehicle, Adams and Peterson pulled him back in. With Stratton's consent Adams took the keys and started to drive. Peterson straddled Stratton and the two fondled each other and kissed for a few seconds. Adams drove to a nearby liquor store. Leaving Stratton and Peterson in the vehicle, Adams went into the store, purchased liquor and then returned. Adams stated Stratton was alive when the men drove away from the store.
As Adams drove to a second location to buy drugs, Stratton and Peterson remained seated on the floor of the RV. Adams heard movement, sounds and coversation but did not know if what began as sex play had become violent. Adams testified he did not see Peterson hitting Stratton. When Adams stopped to buy drugs, Stratton was snoring and appeared to be alright.
  As Adams left the vehicle, he ran into his friend Cowan. Adams and Cowan purchased drugs, then returned to the RV. Stratton was on the floor asleep and snoring.
 
Adams then drove the RV to a check-cashing establishment. During the drive Cowan moved from the front of the vehicle to the rear. When they stopped, Cowan returned to the front and he and Adams went into the check-cashing establishment. After 15 to 20 minutes the two men returned to the vehicle. Peterson was talking to a third man, Freddie. Freddie got into the vehicle and the men drove to an apartment nearby to buy drugs. Adams removed a VCR from the RV to exchange it for drugs. Freddie and Adams took the VCR to an apartment. Adams then returned to the RV to get a television and the cable to connect the VCR to it. Peterson and Cowan were standing over Stratton. Cowan told Adams that Stratton was dead. Adams asked Cowan what was happening. Cowan stated he did not know and that he was leaving. Cowan left. Peterson suggested they rub their fingerprints off of everything in the RV. A few moments later the police arrived.
Adams denied doing anything that would have caused Stratton's death. Adams conceded on cross-examination that he had told a variety of inconsistent stories concerning what happened the night of Stratton's death. In some of those stories Adams stated that Peterson threw Stratton to the ground and beat him.
C. Peterson's Defense
Peterson testified he went to the Chee Chee Club, became drunk and met Adams and Stratton. Peterson testified he was not gay and did nothing that evening to lead the men to believe he was interested in having sex with them. Eventually, the three men began driving about in Stratton's RV. During the evening Adams and Stratton argued repeatedly. After the men left a liquor store, the argument became physical and Stratton slapped Adams numerous times in the face. Stratton tried to leave the vehicle but Adams pulled him back inside. Adams knocked Stratton to the floor. He held Stratton's hands together and told Peterson to help him. Peterson wrapped a belt around Stratton's hands. As Peterson walked to the front of the RV, he kicked Stratton once in the chest and once in the leg. Peterson stated Stratton was still alive when he bound his wrists. Stratton got off the floor and continued to fight but was unable to hit Adams because his hands were bound. Peterson stated Adams strangled Stratton for two to three minutes. After Adams threw him against a wall, Stratton ceased resisting and fell to the floor. Peterson believed Stratton was merely knocked out. Peterson confirmed the general chronology of events described by Cowan and Adams. Peterson stated he only discovered Stratton was dead when Cowan announced that fact later in the evening.
Jail inmate Jason Pollock testified that while he was in a holding cell with Peterson, Adams attempted to intimidate Peterson into taking responsibility for the crime. Adams admitted he argued with Stratton over money, drugs and jealousy and grabbed Stratton by the neck and choked him.
(Lodgment No. 1 at 2-6.)

  III. State Court Proceedings

  On November 15, 1999, a jury convicted Petitioner of second degree murder in violation of Cal. Penal Code section 187(a) (West 2005) and found co-defendant Peterson guilty of involuntary manslaughter in violation of Cal. Penal Code section 192(b). (Lodgment No. 7 at 993, 995.) Additionally, both Petitioner and Peterson were found guilty of proximately causing the death of a senior citizen within the meaning of Cal. Penal Code section 368(b)(3)(A) (West 2005). Petitioner was sentenced to a term of 20 years to life, including fifteen years for the murder conviction plus five years sentencing enhancement for the allegation under Cal. Penal Code section 368(b)(3)(A). (Lodgment No. 7 at 1014.)

  Petitioner appealed to the California Court of Appeal, District Four, Division One. (Lodgment No. 1 at 2.) In his appeal, Petitioner argued (1) that the evidence was insufficient to support a true finding on the killing of an elderly person allegation; (2) that the trial court erred in failing to instruct the jury in the terms of California Jury Instruction, Criminal ("CALJIC") No. 17.01, that a unanimous jury agreement was required concerning the act resulting in death; and (3) that the trial court erred in denying Petitioner's Marsden motion. (Lodgment No. 1 at 2.) On November 21, 2001, the Court of Appeal affirmed the second degree murder conviction but struck down the Cal. Penal Code section 368(b)(3)(A) enhancements in a reasoned decision. (Lodgment No. 1 at 19.)

  On March 11, 2002, Petitioner sought review of the Court of Appeal's decision. (Lodgment No. 3 at 2.) On July 10, 2002, the California Supreme Court denied the petition en banc without comment. (Lodgment No. 3 at 1.)

  Subsequently, on July 30, 2003, Petitioner filed a second appeal in the California Supreme Court, arguing ineffective assistance of trial counsel. (Lodgment No. 4 at 3.) On April 14, 2004, the California Supreme Court denied the petition en banc, citing In re Clark, 855 P.2d 729 (1993). (Lodgment No. 5.)

  IV. Federal Court Proceedings

  Petitioner filed the current Petition for Writ of Habeas Corpus on April 21, 2003, which he amended on August 5, 2003 and on May 3, 2004, asserting three grounds for relief: (1) denial of his Sixth Amendment right to effective assistance of counsel when the trial court allegedly erred by denying his Marsden motion; (2) the trial court failed to instruct the jury pursuant to CALJIC 17.01, which required the jury to unanimously agree on the act or acts Petitioner committed that supported his conviction of second degree murder; and (3) the allegedly inadequate performance of his trial counsel resulted in a violation of his right to due process and his Sixth Amendment right to effective assistance of counsel. (Docket ...


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