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Reinhardt v. Feller

December 24, 2008

DAVE REINHARDT, PETITIONER,
v.
FELLER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

[Doc. 1]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND

Following jury trial in the Fresno County Superior Court, Petitioner was convicted of four counts of assault with a firearm upon a peace officer (Ca. Pen. Code*fn1 § 245, subd. (d)(1)). It was also found true that Petitioner personally used and intentionally discharged a firearm (§ 12022.53, subds. (b) and (c).).

On December 1, 2005, Petitioner was sentenced to an aggregate term of fifty-two years in prison. (2 CT 406; XIV RT 2229-2230.) Petitioner filed a timely appeal and, on May 10, 2007, the Court of Appeal affirmed the judgment. The California Supreme Court denied review. (Petition, Appendix A.)

Petitioner filed state habeas corpus petitions in the California Superior Court, California Court of Appeal, and California Supreme Court, which were all summarily denied. (Petition, Appendix A.)

Petitioner filed the instant federal petition for writ of habeas corpus on March 7, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on September 12, 2008, and Petitioner filed a traverse on September 29, 3008. (Court Docs. 36, 39.)

STATEMENT OF FACTS*fn2

Appellant's grandfather died in the 1980s, giving appellant's mother, Mariel Reinhardt, an irrevocable trust. The trust only would have passed assets to appellant if his mother had died before his grandfather.

In March 2003, appellant was living in Oregon, while his parents, Don and Mariel Reinhardt, lived in Fresno, California. Appellant previously had called his parents asking about his inheritance. On March 5, appellant angrily called his parents demanding his trust fund. In that recorded message, appellant told them that if he remained homeless, they were going to "suffer problems the rest of [their] lives."

Either Don or Mariel called appellant's grandfather's probate attorney, William Coleman, asking that if appellant called him, he correct appellant's misconceptions about the trust. Appellant called Coleman around April 3 and Coleman explained that the trust went to Mariel, the sole beneficiary, because she survived her father. Coleman also explained the key terms of the trust in a letter to appellant.

Appellant again called Coleman on May 12, angrily demanding his trust. In that recorded message, appellant told Coleman that he was coming to Fresno and that Coleman "better start installing bullet-proof glass in [his] office and [he better] carry a gun." Appellant called Coleman several more times demanding his inheritance, and these conversations ended with some type of threat.

On September 9, appellant arrived in Fresno from Oregon. That morning, he appeared unexpectedly at his parents' home. He told his mother, the only one at home, that he was there to take care of his inheritance, one way or another. Mariel testified that appellant became agitated when he saw work was being done on the pool in the backyard, stating, "that's where you're spending my inheritance[.]" She explained that he did not have an inheritance.

Reinhardt family friend and retired police officer Ernie Rojas had noticed appellant walking into the Reinhardt house. When he reached his home two blocks away, he called Mariel. As appellant was looking around the house, Mariel got the call. Rojas confirmed appellant's identity. Aware that appellant had previously threatened his parents, Rojas asked Mariel if she was okay and she replied no. He offered to come over, and she accepted.

Before entering Mariel's house, Rojas heard arguing. Once inside, Mariel introduced appellant to Rojas. Appellant then continued talking to his mother about his inheritance. He started to curse and scream in a high voice that he wanted his inheritance. Mariel and Rojas tried to calm appellant, but according to Rojas, appellant threatened to "kick [Rojas's] ass." Appellant bolted down the hallway saying he was going to get a shotgun. Rojas grabbed Mariel and ran outside, leaving appellant alone in the house. Once they were at a safe distance, Rojas called the police on a cell phone and they waited for the police to arrive.

On September 9, the Reinhardt home contained a nine-millimeter handgun, 20 shotguns, and a 257 Roberts rifle for shooting big game from three or four miles away. A large quantity of ammunition for the weapons was scattered throughout the house.

At approximately 1:00 p.m., Fresno County Sheriff's Office Specialized Weapons and Tactics (SWAT) team leader Sergeant Craig Gularte was dispatched to assess the scene at the Reinhardt house. After speaking with the field supervisor, Sergeant Gularte requested additional units, including sniper units. Other team members who arrived on the scene throughout the afternoon included Detectives Kevin Lolkus and Tim Herzog. Deputies Juan Espinoza, Greg Siemans, Frank Harper, and Joel Walenmeier comprised two sniper teams. The SWAT team set up an inner perimeter to contain appellant in the house and an outer perimeter for crowd control. Other non-SWAT team personnel from the Sheriff's Office and the Fresno Police Department also assisted in the scene.

Connie Moore, a senior investigator and crisis negotiator with the Fresno County District Attorney's Office, was dispatched to the scene. The Crisis Negotiation Team (CNT) included a second negotiator, Detective David Lopez, who joined Investigator Moore at the country club where they set up a communications center to establish phone contact with appellant. They contacted appellant around 2:30 p.m. by calling the telephone in the house. Their negotiations were recorded.

Investigator Moore testified that during the initial contact, she let appellant tell her what his concerns were and what he needed or wanted. According to Investigator Moore, "[appellant] was wanting his inheritance. He believed he had [not] been given what he felt he rightfully deserved from a family inheritance, being savings bonds, trust funds, gold coins." Appellant told Investigator Moore that he was owed between $20,000 and $60,000 "a year from the time he was a young man ... gold coins ... an education at [ ] M.I.T."

Appellant knew that the SWAT team and sheriff's deputies were outside because he could see them through the windows. He could even describe the officers' location to Investigator Moore. Appellant told Investigator Moore that he had loaded the firearms in the house, which included a 257 Roberts rifle, handguns, and one shotgun, and placed them throughout the house. He also had boxes of ammunition. Appellant moved furniture around in the house to prevent entry. During the negotiations, appellant repeatedly threatened to kill: "you pull a gun on me and you know what? I will kill instantly." "I'm not worried about your little SWAT team. What I've got in my hand pokes holes right through bullet proof vests...." "Hey, I'll shoot 'em where they are."

Around 5:00 p.m., Sergeant Gularte had the electricity to the house shut off. The gas was shut off some time later. Sometime around 6:00 p.m., the SWAT team deployed flash bang noise diversionary devices on each side of the house.

All of these tactics were to get appellant's attention and get him to restart communications since the police had not heard from him for a couple of hours. Appellant started to talk to CNT again, but the dialogue began dropping off again.

To restart communication with appellant, Assistant Sheriff Tom Gattie deployed a robot at around 8:00 p.m. The robot stood approximately two-and-a-half feet tall and three feet across. It had tracks on the bottom for mobility, four adjustable lights and several cameras mounted on top for visibility, and a microphone and speaker for communication. It was operated by a toggle switch. It held in its claw a window punch for breaking glass. A 12-gauge automatic shotgun was mounted on the robot.

Sergeant Gularte watched the robot's progress through a monitor. The robot entered the backyard of the house and reached a sliding glass door. It turned on its lights, immediately contacting appellant. The team could see and hear him. Appellant was yelling at them to get the robot out of the house. Appellant fired four shotgun blasts at the robot. Appellant fired two other shots from the back of the house, to the right of Detective Herzog. Both Detective Herzog and Deputy Harper heard the rounds going over their heads. Seconds later, appellant moved to the front of the house and began firing shots.

At the same time, snipers Deputies Siemans and Espinoza were positioned prone on the ground under a tree 10 to 12 feet tall whose branches hung five to six feet from the ground. Deputy Siemans thought that appellant fired a shotgun round in his direction because he felt a "whoosh" go over his head. Deputy Espinoza saw one round ricochet off a patrol vehicle. Deputy Espinoza returned fire. Appellant was running through the house cursing and yelling that he knew where all the deputies were and that they had better get back. Deputy Siemans saw appellant move to another window illuminated by a candle in the room. Appellant was holding a rifle in his hands, leveling it at the deputies. Deputy Siemans fired into that window.

Subsequently, negotiators were able to communicate with appellant over the telephone but lost contact with appellant shortly after 11:00 p.m. Around that time, law enforcement deployed more gas devices and appellant responded by firing a volley of three to five rounds at Deputies Siemans and Espinoza. Deputy Siemans heard the crisp sound of a round fired from a high-power, long rifle snap above his head as leaves from the branches hanging a few feet above them fell on Deputy Espinoza's head.

Deputy Herzog was extracted from his location by an armored vehicle and joined Detective Lolkus at his location to provide lethal cover for him as he deployed gas into the house. They used barricade-penetrating, smokeless, micro-particle C.S. gas inside 40-millimeter large "ferret" rounds.

Around midnight, Detective Lolkus fired a ferret round into the house as Detective Herzog kneeled next to him. Detectives saw the muzzle blast as appellant fired a round from the house directly at them. Detective Herzog returned fire into the broken sliding glass door whence the shot came.

In all, Detective Lolkus fired seven ferret rounds into the house that night. Each time the team deployed gas, appellant returned fire. Appellant fired 40 to 50 rounds from the house sporadically throughout the night until approximately 2:00 or 3:00 a.m., at which time the Fresno Police Department relieved the sheriff's office. At 3:40 a.m., appellant surrendered to the police.

Sheriff's Detective Sergeant Toscano interviewed appellant at the sheriff's department headquarters. Appellant told him that the operator of the robot was telling him to pick up the telephone so that the police could communicate with him. Appellant admitted firing a nine-millimeter pistol, a 12-gauge shotgun, a 16-gauge shotgun, and a 257 bolt-action rifle. He also admitted firing at officers who had fired the ferret rounds. He said that he fired three or four rounds at the patrol car and when the tear gas impaired his vision, he grabbed the nine-millimeter pistol and fired it indiscriminately. Appellant also told Detective Toscano that he was carrying a rifle when he had earlier gone outside to retrieve some paperwork.

Appellant said that he took the law into his own hands because his complaint about his inheritance was not being resolved. He told Detective Toscano that when the officers fired the ferret rounds he felt that it was a threat, and therefore, he was going to return fire and stop the threat. If that meant to kill an officer, "that happens in those occasions," in a gun battle.

Appellant appeared lucid, had not been drinking, and was not taking any medication. Appellant stated that he had smoked "a little weed," but said that he knew exactly what he was doing during the incident that day.

Defense case

Clinical psychologist Harold Seymour evaluated appellant and opined that he suffered from a "delusional disorder with paranoid and grandiose features." Central to the disorder is

"[T]hinking that's inconsistent with how other people think. In the case of a delusional disorder, these thought processes, the ideas associated with them are pretty firmly fixed and entrenched so the person truly believes the thoughts that they have are, in fact, real."

In appellant's case, Seymour concluded, he believed that he was owed an inheritance. According to Seymour, once a delusional person locks onto a theme or idea, they stay with it even in the face of overwhelming, contrary evidence.*fn3

Assistant Sheriff Gattie testified that the robot was armed with a 12-gauge automatic shotgun on September 9. Once the robot entered the house, appellant shot the robot, which became inoperable, except that the robot still allowed for two-way voice communication.

Appellant testified on his own behalf. He testified that when he turned 35, he found out about Coleman from his parents. He contacted Coleman and received a copy of trust documents from him. According to appellant, he was to receive one third of his inheritance when he turned 35, 40, and 45. He was to receive $5,000 a month or $60,000 a year until age 35. Appellant claimed that his parents were keeping the money from him, thereby financially abusing him. Appellant acknowledged that the document entered into evidence in his case entitled him to nothing, but claimed that it was only part of the original document. Appellant testified that he did not trust his parents or the document in their hands because they could make it say whatever they wanted.

Appellant testified that when Rojas came over on September 9, he did not threaten Rojas. Rather, Rojas threatened him by picking up the cordless telephone and "saying do what I say and leave immediately or I'm going to call the police and have you arrested." Appellant claimed that he went to the back room to get another phone to talk to 911.

Appellant testified that he had intermittent contact with Investigator Moore but that she was not doing anything. He admitted shooting 12 or 13 shots from the home. He claimed that he fired the 257 Roberts at the patrol car in front of the house, he shot the robot four times each with the 257 Roberts and a shotgun, and he fired a 16-gauge shotgun and a nine-millimeter, both of which he claimed jammed. He claimed that when he shot the robot, he had no intention of shooting at the police officers.

After he shot the robot, appellant testified, the police opened fire at the front and back of the house. Appellant said that he shot the lights out of the patrol car so police could no longer use them to illuminate the house. When the ferret rounds of gas were fired into the house, appellant testified that he went to the back bedroom to escape the gas and wrapped a wet shirt around his face to breathe.

Appellant claimed that he never fired in the direction from which the officers fired because he never saw their fire. He also denied shooting high above the officers' heads. Appellant testified that of the 13 shells that the police found in the house, eight were for bullets fired into the robot, three into the police car, and one each into the living room and hallway walls.

When asked why he resisted as he had, appellant said that he had been to jail a few times and that the legal system in Fresno used excessive force. When asked why he did not surrender when ordered to, appellant claimed that "basically Fresno County likes to lock you up for exercising your freedom of speech when there's no evidence against you." Appellant reported having been jailed seven or eight times when he was a teenager, mostly on traffic matters.

Appellant testified that if he had it all to do over again, he would not back down. "They instigated what happened. I would probably do the same thing again, okay, in the way of standing my ground there. I wouldn't back down like this and just let them cart me off." Appellant denied being delusional and had no doubt that a trust fund existed for him. Appellant claimed that the whole event happened because he wanted someone to listen to his side of the story, he wanted protection of the law. Appellant testified that he wanted to let the police know that he had weapons, and they should not come into the house. He claims, however, that when the armed robot came in, he had no choice but to defend himself. He denied assaulting or trying to kill the police officers.

DISCUSSION

A. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The ...


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