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Scott v. Scribner

December 14, 2007

KEESHAWN EUGENE SCOTT, PETITIONER,
v.
LARRY SCRIBNER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER: 1) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; 2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; and 3) DENYING REQUEST FOR AN EVIDENTIARY HEARING

Keeshawn Eugene Scott ("Petitioner"), a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. Petitioner challenges his San Diego Superior Court conviction in case number SCD 158106 for willful, deliberate, and premeditated attempted murder and intentionally and personally discharging a firearm causing great bodily injury. (Lodgm't No. 1 at 69.) He contends he was denied effective assistance of counsel when his attorney failed to investigate and present a PCP*fn1 psychosis defense, failed to utilize funds which had been approved for the purpose of conducting neuropsychological examinations, and gave perjured testimony at a hearing on a motion for a new trial. (See Doc. No. 1, Attach. to Pet. at 16-42.) He also requests that this Court hold an evidentiary hearing on his claims. Before the Court is Magistrate Judge Cathy Ann Bencivengo's Report and Recommendation ("R&R") recommending that the Court deny the Petition. (Doc. No. 13.) For the reasons set forth below, this Court ADOPTS the R&R and DENIES the Petition in its entirety.

Factual Background

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). The facts as found by the state appellate court are as follows:

On the morning of February 3, 2001, . . . [Petitioner] was at the home of his girlfriend, Lekisha Hayes . . . . Hayes lived with her mother (Sheila Lessier) and other family members. Calvin Wilkerson, who was Lessier's friend, arrived at the house around 11:00 a.m. and joined Lessier in her bedroom . . . . Hayes and her sister were in the kitchen preparing breakfast . . . . [Petitioner] joined Hayes and her sister in the kitchen.

Lessier and Wilkerson had been in the bedroom for about 10 minutes when [Petitioner] knocked on the bedroom door, asked if he could come in and sit with them, and asked if he could smoke a cigarette . . . . While the three of them were smoking, Lessier was cleaning and the television was on. Wilkerson and [Petitioner] did not engage in any other conversation. [Petitioner] seemed normal and did not appear angry. [Petitioner] and Wilkerson had met before, but had never engaged in any significant conversations or had any problems . . . .

[Petitioner] was in the room less than five minutes, when all of a sudden Lessier heard a loud noise. Lessier, who was standing about seven to eight feet away from [Petitioner], turned and saw [Petitioner] shooting Wilkerson with a gun . . . . When he fired the first shot, [Petitioner] was sitting down about three or four feet away from Wilkerson; as he continued to shoot he stood up over Wilkerson. Lessier heard about 10 gunshots.

Neither Wilkerson nor Lessier had seen the gun before [Petitioner] started shooting. As he was shooting, Lessier saw that at first [Petitioner] had the gun partially covered by the pocket of the red sweatshirt he was wearing. Then, when he was standing up, he had the gun completely out of the pocket with his arm extended. It seemed to Lessier that [Petitioner] was in a daze and that he had left his body. Lessier stood up and asked, "What are you doing?" and it seemed like [Petitioner] then woke up and "popped back in." [Petitioner] turned and ran out of the room.

Hayes was sitting in the living room watching television when she heard several loud bangs. She saw [Petitioner] come out of the hallway and go into the kitchen. His face appeared dazed and not like it normally looked. [Petitioner] went outside, tried unsuccessfully to open the door to Hayes' car, and then came back to the front door of the house and asked for the car keys. Lessier refused to give them to him, . . . and [Petitioner] left the area on foot.

The police found a semiautomatic handgun with a wooden handle in the crawlspace under Lessier's house. [Petitioner]'s fingerprint was found on the magazine clip in the gun. [Petitioner] was apprehended at another residence in the neighborhood, where he was found sitting on a bed smoking a cigarette. [Petitioner] told the police that he was the one they were looking for. [Petitioner] appeared calm and relaxed during the entire contact with the police. [Petitioner]'s red sweatshirt was found in plain view on the floor in a closet of the bedroom where he was arrested. The front pocket of the sweatshirt had a hole with gunshot residue on it.

The night before the shooting, [Petitioner] and Hayes had slept together at her mother's house. Hayes did not see [Petitioner] with a gun at her mother's house. However, earlier that night when they were at a friend's house, Hayes saw [Petitioner] with a black gun that had wood on it . . . . Hayes could not tell if the gun used during the shooting was the same gun as the one handled by [Petitioner] the night before.

As a result of the shooting, Wilkerson suffered life-threatening injuries and required several major surgeries . . . . Without surgery, he would have bled to death . . . . Wilkerson's surgeon estimated that six to eight bullets entered Wilkerson's body. (Lodgm't No. 5 at 2-4.)

Procedural Background

On March 19, 2001, the San Diego County District Attorney's Office filed an amended information charging Petitioner with one count of attempted first-degree murder, a violation of California Penal Code Sections 187(a), 664 and 189. (Lodgm't No. 1 at 3.) The Information also alleged that Petitioner had intentionally and personally discharged a gun and proximately caused great bodily injury within the meaning of Penal Code Section 12022.53(d). (Id.) A jury found Petitioner guilty of attempted first-degree murder and found the gun enhancement to be true. (Id. at 69.) Following the appointment of substitute counsel, Petitioner filed a motion for a new trial in the superior court based largely on the same grounds as his current federal petition. (Id. at 70.) After a hearing, the court denied the motion and sentenced Petitioner to life with the possibility of parole on the murder count and twenty-five years to life on the gun enhancement. (Lodgm't No. 2, Vol. 3 at 420-24.)

Petitioner appealed his conviction to the California Court of Appeal, which upheld Petitioner's conviction in a written opinion. (Lodgm't Nos. 3-5.) He then filed a Petition for Review in the California Supreme Court, which the Court denied without citation of authority. (Lodgm't Nos. 6, 7.) Following direct review, Petitioner filed a habeas corpus petition in the San Diego Superior Court, which the court denied in a written opinion. (Lodgm't No. 8, Appxs. C - F.) He then filed a habeas corpus petition in the California Appellate Court, which the court denied in a written opinion. (Lodgm't No. 9, Appx. H.) Petitioner thereafter filed a habeas corpus petition in the California Supreme Court, which the Court denied without citation of authority. (Lodgm't Nos. 9, 10.) Finally, Petitioner filed a habeas corpus petition in the San Diego Superior Court, which the court denied in a written opinion. (Lodgm't No. 11; Resp't's Ex. B.) Petitioner filed a Habeas Corpus Petition in this Court on March 15, 2007, and Respondent filed an Answer on June 8, 2007. (Doc. Nos. 1, 8.) Petitioner filed a Traverse on July 31, 2007. (Doc. No. 11.)

The last reasoned state court decision to address the merits of this claim is the state appellate court's opinion denying Petitioner's habeas corpus petition. (See Lodgm't No. 9, Appx. H at 1-3.) That court stated:

[Petitioner] filed a petition for writ of habeas corpus in superior court on May 21, 2004, charging [trial counsel] with ineffective assistance. The petition was based on a declaration from [trial counsel]'s former law partner, Steven G. Cline, that charged [counsel] with, among other things, failing to investigate [Petitioner]'s drug problems or have him evaluated by an expert when she was aware that [he] had a lengthy history of severe drug abuse including use of PCP; and giving false and misleading testimony at the hearing on the new trial motion to support her decision not to offer a mental defense. The court issued an order to show cause, but ultimately denied relief in explaining the petition was untimely and [Petitioner] had not shown that [counsel]'s representation was deficient or that any deficiency prejudiced his defense.

If we turn briefly to the merits, [Petitioner] offers no explanation for the substantial delay -- i.e., why Cline delayed reading the transcript of [trial counsel]'s testimony at the new trial hearing on April 12, 2002, and discussing it with Jordan until after the appeal was decided. Of greater significance is the fact that [trial counsel] did in fact consult experts about [Petitioner]'s mental status. There is no dispute that she had [Petitioner] evaluated by a psychologist, Dr. Michel, in early March 2001 to determine if she could raise a defense to premeditation. Dr. Michel reported that (1) [Petitioner] had no viable mental defenses; (2) his denial of shooting the victim and his claim that the eyewitnesses were lying suggested an antisocial personality disorder; and (3) the only drug Petitioner admitted using was marijuana but he denied using any on the day of the shooting. [Trial Counsel] also had [Petitioner] evaluated by Dr. Carroll in May 2001 to determine competence to stand trial. Dr. Carroll's report noted that [Petitioner] admitted smoking marijuana laced with PCP on an "occasional" basis but denied any difficulty controlling his use of the drug. Dr. Carroll described [Petitioner] as alert and fully oriented, called his thought process illogical and goal directed, and indicated [Petitioner] was not psychotic, not delusional and not hearing voices or having visual hallucinations.

The isolated statements attributed to [Petitioner] during a jailhouse interview in August 2001 do not conceded [sic] or imply long-term, chronic or severe abuse of PCP and are not inconsistent with the psychologists' reports. Notably, the record before this court is devoid of any evidence from [Petitioner] that he had a long history of PCP use or even that he used drugs at or about the time of the shooting. [Petitioner] has failed to raise "a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. 687.)

The petition is denied. (Id.)

Legal Standard

I. State Prisoner Habeas Corpus Standard

A federal court's duty in examining a state prisoner's habeas petition is governed by the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254. Pursuant to the AEDPA, a federal court may grant habeas corpus relief from a state court judgment only if the adjudication was (1) contrary to, or involved an unreasonable application of, clearly established federal law, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002).

A federal court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Lockyer v. Andrade, 538 U.S. 63, 73 (2003). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular Id. at 76. Additionally, the state court's factual determinations are presumed correct, and the petitioner carries the burden of rebutting this presumption with "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal courts must independently review the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000), overruled on other grounds by Lockyer, 538 U.S. at 75-76; accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

II. Reviewing a Magistrate Judge's Report and Recommendation

The district court's duties in connection with a magistrate judge's R&R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). The district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 676 (1980). "When no objections are filed, the district court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law." Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). "Under such circumstances, the Ninth Circuit has held that 'a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of ...


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