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Harrison v. Mule Creek State Prison

February 20, 2009

CARL HARRISON, PETITIONER,
v.
MULE CREEK STATE PRISON, RESPONDENT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM OPINION AND ORDER RE PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner who is proceeding pro se on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. This case proceeds on the first amended petition filed September 10, 2003, and the amendment to that petition filed June 4, 2007. Respondent opposes the petition.

BACKGROUND

On November 2, 1994, following a trial in Fresno County Superior Court, a jury convicted Petitioner of the following:

1) count one: Penal Code Section 286(c)*fn1 (forcible sodomy with child under age 14 and more than 10 years younger than Harrison), victim Tony R.; 2) counts two through six Section 288a(c) (forcible oral copulation with child under age 14 and more than 10 years younger than Harrison), victim Tony R.; 3) counts seven and eight: Section 288a(c), victim Victor R. 4) count nine: Section 286(c), victim Jeffrey R.; 5) count ten: Section 288a(c), victim Jeffrey R.; 6) counts eleven and twelve: Section 288a(c), victim Andrea G.; 7) count thirteen: Section 288(a)(lewd and lascivious act on child under age 14), victim Andrea G.; 8) count fourteen: Section 261, (a)(2) (forcible rape), victim Janiva P.; 9) count sixteen, Section 242 (battery, a lesser included offense of Section 273.5, infliction of corporal injury on cohabitant), victim Cynthia E.; 10) count seventeen, Section 207 (b) (kidnaping a child under age 14 for the purpose of committing a violation of Section 288), victim Sylvia G.; 11) counts eighteen through twenty one and twenty-three, Section 288(a), victim Sylvia G; 12) count twenty-two, Section 243.4 (sexual battery, a lesser included offense of Section 288(a), victim Sylvia G.

In regard to counts one through fourteen, eighteen through twenty-one, and twenty-three, the jury also found true the special allegation that in committing the offenses, Harrison engaged in substantial sexual conduct with a child under age 14 (Section 1203.066(a)(8).

The judge sentenced Petitioner to a total unstayed term of 121 years in prison and ordered him to pay a fine of $4000.

Petitioner filed a timely direct appeal with the California Court of Appeal, Fifth Appellate District. The Court of Appeal reversed the trial court's finding that Petitioner was a vexatious litigant, because that designation only pertained to civil litigants in California. The Court of Appeal affirmed the judgment.

Petitioner filed a petition for review with the California Supreme Court. The court denied the petition on January 16, 2002.

Petitioner filed two petitions for writ of habeas corpus in Superior Court. The first petition was filed on September 10, 2003, and denied on September 16, 2003. The second petition was filed on August 11, 2004, and denied on August 26, 2004.

Petitioner filed five petitions for writ of habeas corpus in the Court of Appeal. The first was filed on September 10, 2003, and denied on July 6, 2004. The second was filed on January 27, 2004, and denied on July 7, 2004. The third was filed on August 12, 2004, and denied on December 3, 2004. The fourth was filed on January 25, 2005, and denied on April 3, 2006. The fifth was filed on July 6, 2005, and denied on April 3, 2006.

On June 22, 2006, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court. The court denied the petition on January 17, 2007.

Respondent admits that Petitioner has exhausted his state judicial remedies as to the claims raised in this petition. Petitioner filed the present petition on January 13, 2003.

LEGAL STANDARDS

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, 120 S.Ct. 1495, 1504 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. In addition, the conviction challenged arises out of the Fresno County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 2241(d). Accordingly, the court has jurisdiction over the action.

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA, thus it is governed by its provisions.

STANDARD OF REVIEW

This court may entertain a petition for 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." 28 U.S.C. § 2254(a).

The AEDPA altered the standard of review that a federal habeas court must apply with respect to a state prisoner's claim that was adjudicated on the merits in state court. Williams v. Taylor, 120 S.Ct. 1495, 1518-23 (2000). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d); Lockyer v. Andrade, 123 S.Ct. 1166, 1173 (2003) (disapproving of the Ninth Circuit's approach in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000)); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, at 1174 (citations omitted). "Rather, that application must be objectively unreasonable." Id.(citations omitted).

While habeas corpus relief is an important instrument to assure that individuals are constitutionally protected, Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-3392 (1983); Harris v. Nelson, 394 U.S. 286, 290, 89 S.Ct. 1082, 1086 (1969), direct review of a criminal conviction is the primary method for a petitioner to challenge that conviction. Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 1719 (1993). In addition, the state court's factual determinations must be presumed correct, and the federal court must accept all factual findings made by the state court unless the petitioner can rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769 (1995); Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457 (1995); Langford v. Day, 110 F.3d 1380, 1388 (9th Cir. 1997).

A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).

A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). Where the California Supreme Court's opinion is summary in nature, this court "looks through" that decision and presumes it adopted the reasoning of the California Court of Appeal, the last state court to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n. 3, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (establishing, on habeas review, "look through" presumption that higher court agrees with lower court's reasoning where former affirms latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir.2000) (holding federal courts look to last reasoned state court opinion in determining whether state court's rejection of petitioner's claims was contrary to or an unreasonable application of federal law under § 2254(d)(1)).

DISCUSSION

Denial of Motions to Substitute Counsel

Petitioner contends in his first claim of his amended petition filed September 10, 2003, that the trial court erred in denying his verbal and written Marsden motions to remove his appointed counsel without proper investigation of his claims and without properly questioning counsel. Petitioner claims that the trial court improperly heightened the burden in regard to the motions, so that Petitioner could not succeed on his motions. Petitioner concludes that he was thereby denied his right to due process, to a fair trial, and to effective assistance of counsel.

The denial of a motion to substitute counsel implicates a defendant's Sixth Amendment right to counsel. Bland v. California Dep't of Corrections, 20 F.3d 1469, 1475 (9th Cir. 1994). Petitioner's claim that his Marsden motion was improperly denied is therefore properly considered in this habeas proceeding. In determining whether a motion to substitute counsel was improperly denied, the court must consider three factors: "(1) the timeliness of the motion; (2) the adequacy of the court's inquiry into the defendant's complaint; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense." Bland v. California Dep't of Corrections, 20 F.3d at 75 (citation omitted).

In addressing Petitioner's claim, the Court of Appeal explained as follows:

During the course of proceedings in superior court, Harrison had at least four different attorneys and submitted, orally or in writing, a minimum of 19 motions to substitute appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). He now contends that two of these motions - one heard on May 22, 1991, by Judge Gomes, and the other heard on October 5, 1994, by Judge O'Neill - were erroneously denied because the court failed to read the written motions and to inquire of defense counsel.

Court of Appeal Opinion, 6.

The Court of Appeal reviewed the facts surrounding the two motions at length, describing and explaining Petitioner's motions, the judges' inquiries and the ruling on each motion. In regard to the motion before Judge Gomes to relieve attorney Thomas J. Richardson, the Court of Appeal specifically addressed and rejected, among other claims, Petitioner's claim that he was being denied access to his legal work, that Richardson failed to adequately investigate the case, that Richardson did not keep Petitioner informed about the case, and that Richardson did not adequately prepare. The Court of Appeal also analyzed Petitioner's claim that Mr. Richardson was in collusion with the prosecutor. This court has reviewed Petitioner's allegations at length, and finds that Petitioner has in no way demonstrated any error in the Court of Appeal's analysis.

In regard to the motion before Judge O'Neill to relieve attorney Richardson, the Court of Appeal again reviewed the facts, noting at the outset that the judge continued the hearing on Petitioner's motion until the following morning so that he could read Petitioner's lengthy motion and attached exhibits. The Court of Appeal explained how Judge O'Neill addressed Petitioner's claims in detail, including those regarding admission of Petitioner's prior conviction, Richardson's communication with Petitioner, police pressure on the mother of one of the victims, and Petitioner's desire to act as co-counsel. The Court of Appeal "categorically" rejected "any attempt" by Petitioner to "suggest that Judge O'Neill had not read the October 4 motion." After thoroughly reviewing the facts, the Court of Appeal found that Judge O'Neill did not have a duty to ask about each and every allegation put forth by Petitioner, and that Judge O'Neill conducted an adequate inquiry. It concluded that there was no error.

This court has reviewed Petitioner's claims and the Court of Appeal opinion at length. As set forth above, the California Supreme Court denied Petitioner's petition for review. Therefore, under Ylst v. Nunnemaker, this court "looks through" that decision and presumes it adopted the reasoning of the California Court of Appeal, the last state court to have issued a reasoned opinion. After a carefully consideration, this court finds that Petitioner has failed to carry his burden of demonstrating that the California Supreme Court's adjudication of the claims "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d). These claims therefore provide no basis for habeas corpus relief.

Petitioner's Pro Se Motions and Filings

Petitioner contends in his second claim of his amended petition that the trial court erred in declaring him to be a vexatious litigant because it resulted in the trial court ignoring several Marsden motions. Petitioner presented this claim to the Court of Appeal on direct appeal, which reversed the trial court's vexatious litigant finding, but found that reversal of the conviction was not warranted because of a lack of prejudice. Petitioner presented this claim in his petition for review to the California Supreme Court.

The Court of Appeal summarized the facts as follows:

On June 19, 1992, Harrison was found to be incompetent in case Nos. 410784-3 and 433352-2, and conservatorship proceedings were instituted. Harrison subsequently submitted a petition for writ of habeas corpus in case No. 410784-3, as well as a "DEMAND FOR HEARING on issues of Wel. Inst. Code 5008 and 5350." (Sic.) On July 17, 1992, Judge Nunez issued the following order in case No. 410784-3, entitled "ORDER PROHIBITING FURTHER FILINGS IN PROPRIA PERSONA"; "Having read and considered the numerous motions, petitions, and other documents submitted in propria persona by Carl Harrison plus relevant court documents on file in this and related matters, the court finds that the defendant is represented by an attorney of record, defendant's actions have been vexatious within the meaning of section 391 of the Code of Civil Procedure, and defendant currently is not qualified to represent himself.

"IT IS THEREFORE ORDERED that the County Clerk shall not accept any further documents for filing submitted in propria persona by Carl Harrison unless leave has first been obtained from the Presiding Judge of this Court." The ordered was filed on July 20, 1992. Insofar as the record shows, it was issued on the court's own motion, without prior notice to the parties or hearing. Thereafter, Harrison continued to submit various documents and motions (including pursuant to People v. Marsden (1970) 2 Cal.3d 118 [Marsden]), some of which took the form of letters written to specific judges, and others which were stamped "received" instead of "filed." Some appear in the clerk's transcript on appeal without any stamp, while others appear in the correct chronological order for the date placed on the motion by Harrison, but are file-stamped March 15, 1995, after he was sentenced. Harrison withdrew two Marsden motions, dated February 11 and March 6, 1994, on March 10, 1994, during his hearing on restored competence.

Court of Appeal Opinion, 21 - 22.

In addressing the issue of prejudice, the Court of Appeal held as follows:

To the extent any Marden motions were not filed because of Judge Nunez's prefiling order, Harrison was not precluded from presenting these motions to the court. There is nothing in the record to indicate Harrison attempted to comply with the order's requirement that he obtain the presiding judge's permission to have the documents filed. More importantly, and regardless of whether the motions were not heard because they were not filed or because Harrison had been declared incompetent, we find no cause for reversal because of what took place in a hearing conducted by Judge O'Neill on July 18, 1994:

THE COURT: Listen to me, Mr. Harrison. If there is that issue, which you still wish to raise, just prepare your Marsden motion, send it to me, I will make sure it is in the file at the time of the hearing on these motions and it will be heard at the same time. [¶] . . . [¶]

THE COURT: All I am telling you, if you want a Marsden hearing you send it to me, I'll make sure it is in the file. And on August 17th at the same time that all of your other motions are heard we will hear that one." (Italics added.)

Harrison has not shown that any of his concerns with counsel were so pressing that he was prejudiced because they were not heard immediately, that he could not have resubmitted his motions prior to the August 17 hearing, [footnote omitted] or that he was unable to submit further complaints about counsel to Judge O'Neill. Some of his complaints, being exceedingly repetitious, were in fact ruled upon in later hearings. To the extent any earlier complaints were not heard, any error was cured by Harrison's failure to raise them at the hearings on his subsequent motions. (See People v. Lloyd (1992) 4 Cal.App.4th 724, 731-732.)

This court's review of the claim reveals that, as explained by the Court of Appeal, Petitioner has not shown that he was prejudiced by the trial court declaring him to be vexatious litigant. Petitioner has thus failed to carry his burden of demonstrating that the California Supreme Court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d). This claim therefore presents no basis for habeas relief.

Ineffective Assistance of Counsel Re Competence

Petitioner contends in the third claim of his amended petition that trial counsel was ineffective for failing to make a timely motion to dismiss based on competence. Petitioner relies on the fact that on June 19, 1992, the trial court found him to be incompetent, with no substantial likelihood competence would be restored. Petitioner claims that although trial counsel made a motion to dismiss based on competence on December 8, 1993, it was not timely because the trial court had found him to be competent in the interim. Petitioner presented this claim to the California Supreme Court in his petition for review.

The Court of Appeal explained the factual background as follows:

Harrison was found incompetent several times during the course of the proceedings. On June 19, 1992, following a trial on the issue, Judge Quashnick issued written factual findings in which he found that Harrison suffered from Dissociative Disorder (Multiple Personality Disorder); had several separate and distinct personalities, one of whom was afflicted with paranoid schizophrenia and was unwilling and unable to assist counsel in preparation for trial; had no control over the personalities; and quickly switched from one to another, making him unable to assist counsel since one of the personalities was actively working against Richardson. Judge Quaschnick found, by a preponderance of the evidence, that Harrison was incompetent; that there was no substantial likelihood competence would be restored within the foreseeable future; and that the evidence established that competency would not be regained for at least 10 years and probably never. Judge Quaschnick further found, beyond a reasonable doubt, that Harrison was gravely disabled, had a dangerous mental condition, and represented a substantial danger. Based on the foregoing, Judge Quaschnick ordered Harrison deemed incompetent pursuant to section 1368-1370, found him gravely disabled within the meaning of Welfare and Institutions Code section 5008, subdivision (h)(1)(B), and ordered initiation of conservatorship proceedings pursuant to Welfare and Institutions Code section 5350 et seq.

Judge Quaschnick subsequently referred the matter to the public guardian's office for investigation and report pursuant to Welfare and Institutions Code section 5008, subdivision (h)(1)(B), and continued the matter for hearing on a "Murphy" conservatorship. On July 30, Judge Quaschnick committed Harrison to a secure, long-term, locked mental facility operated by the State of California and ordered the public guardian to institute a "Murphy" conservatorship.

Harrison apparently was sent to Atascadero State Hospital, where he remained until August 1993. On August 13, 1993, Harrison was back in court, the conservatorship proceedings evidently having been withdrawn. While the authorities at Atascadero claimed Harrison was competent, Richardson continued to assert that he was not and never would be. During the August 13 hearing before Judge Gomes, Harrison argued that under Jackson v. Indiana (1972) 406 U.S. 715, he could no longer be prosecuted. [Footnote omitted.] Harrison reiterated this claim at the continued hearing on August 20, 1993.

During the August 20 hearing, Richardson responded to Harrison's assertion that prosecution was barred by the so-called "three year rule" by requesting that a motions date be set. The court assigned a date of September 22, 1993. Various continuances were had, and Richardson did not actually move to dismiss charge until December 8, 1993.

Court of Appeal Opinion, 29-31.

The law governing ineffective assistance of counsel claims is clearly established for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d). Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir. 1998.) In a petition for writ of habeas corpus alleging ineffective assistance of counsel, the court must consider two factors. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must show that counsel's representation fell below an objective standard of reasonableness, and must identify counsel's alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Id. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Judicial scrutiny of counsel's performance is highly deferential. A court indulges a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994).

Second, the petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result ... would have been different," 466 U.S., at 694. Petitioner must show that counsel's errors were so egregious as to deprive defendant of a fair trial, one whose result is reliable. Strickland, 466 U.S. at 688. The court must evaluate whether the entire trial was fundamentally unfair or unreliable because of counsel's ineffectiveness. Id.; Quintero-Barraza, 78 F.3d at 1345; United States v. Palomba, 31 F.3d 1356, 1461 (9th Cir. 1994).

A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. 668, 697, 104 S.Ct. 2052, 2074 (1984). Since the defendant must affirmatively prove prejudice, any deficiency that does not result in prejudice must necessarily fail. However, there are certain instances which are legally presumed to result in prejudice, e.g., where there has been an actual or constructive denial of the assistance of counsel or where the State has interfered with counsel's assistance. See Strickland, 466 U.S. at 692; United States v. Cronic, 466 U.S., at 659, and n. 25, 104 S.Ct., at 2046-2047, and n. 25 (1984).

Ineffective assistance of counsel claims are analyzed under the "unreasonable application" prong of Williams v. Taylor, 529 U.S. 362 (2000). Weighall v. Middle, 215 F.3d 1058, 1062 (2000). "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [United States Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. The habeas corpus applicant bears the burden to show that the state court applied United States Supreme Court precedent in an objectively unreasonable manner. Price v. Vincent, 538 U.S. 634, 640 (2003).

The Court of Appeal explained Petitioner's contention as follows:

Harrison now contends Richardson's performance was deficient, since it is reasonably probable a motion to dismiss would have been granted had it been brought shortly after Judge Quaschnick issued his findings. Had the motion been successful, Harrison claims, he would have continued as a conservatee solely pursuant to Welfare and Institutions Code section 5008. He seeks reversal of the judgment so that conservatorship proceedings can be ]initiated. [Footnote omitted.]

Court of Appeal Opinion, 31.

In addressing Petitioner's contention, the Court of Appeal recognized the applicable Srickland standard and then analyzed California law on competency under In re Davis, 8 Cal.3d 798 (1973). The Court of Appeal found that under the circumstances of representing a client who "seemingly cycled in and out of competence," counsel could have reasonably believed that a motion to dismiss brought in 1992 would not have had a very good chance of succeeding. Court of Appeal Opinion, 37. The Court of Appeal concluded, therefore, that Petitioner had failed to establish that counsel's performance was defective. Id. at 38.

The Court of Appeal further found that Petitioner had failed to establish prejudice, because based on the history of the case, it was not likely that the request to dismiss, if made, would have been granted. It also found no reasonable likelihood that events that had a request for dismissal been granted, events would have played out differently, rejecting Petitioner's speculation that Atascadero would not have returned him to court, but instead he would have continued as a conservatee.

Court of Appeal Opinion at 38.

This court's review of the claim reveals that, as explained by the Court of Appeal, Petitioner has not shown that he was prejudiced by trial counsel failing to make an earlier motion to dismiss based on competence. In particular, this court must agree with the Court of Appeal's ultimate conclusion that had a request for dismissal been granted, there is no evidence that Atascadero would not have returned Petitioner to court. Petitioner has thus failed to carry his burden of demonstrating that the California Supreme Court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d). This claim therefore presents no basis for habeas relief.

Denial of Motion to Dismiss

Petitioner contends in the fourth claim of his amended petition that the trial court erred in denying his December 1993 motion to dismiss. He claims that both state and federal law mandated dismissal. Petitioner presented this claim to the California Supreme Court in his petition for review.

The Court of Appeal discussed this claim at length, recognizing at the outset that the trial court made a finding that it was not reasonably likely that Petitioner's competence would be restored in the foreseeable future. Court of Appeal Opinion, at 39. The Court of Appeal noted that both California and federal law prohibit indefinite commitments without trial, but found that neither automatically mandated immediate dismissal of criminal charges under the conditions in this case. Id. at 42. It concluded that it could not say that the three years of confinement authorized under California law were unreasonable when applied to Petitioner's circumstances, Id.

The Court of Appeal further concluded that even if the three-year limitation was exceeded in Petitioner's case, reversal of the criminal conviction was not required. It found that neither federal nor state law necessarily entitled a defendant to dismissal of criminal charges once the three-year period is reached. Court of Appeal Opinion, 43-44. Further, it found that Petitioner was not entitled to reversal without a showing of prejudice, a showing which he could not make. The Court of Appeal concluded as follows:

Harrison was found competent to stand trial, and he then underwent a jury trial in which he was convicted of criminal charges. We do not see how this outcome would have changed. If conservatorship proceedings had been instituted, Harrison still would have been found restored to competency and subsequently would have been tried and convicted. (See § 1372, subd. (b).) Had criminal charges been dismissed, the dismissal would not have acted as a bar to further prosecution. (See § 1387.) The record does not suggest any occurrence that even remotely might have changed the course of the proceedings, either with regard to the judicial determination that Harrison was competent to stand trial, or with respect to that trial itself.

Court of Appeal Opinion, 46.

In light of the unavoidable logic of this analysis, this court finds that Petitioner has failed to carry his burden of demonstrating that the California Supreme Court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d). This claim therefore presents no basis for habeas relief.

Burden of Proof re Competency to Stand Trial

Petitioner contends in the fifth claim of his amended petition that the trial court erred in placing on him the burden of proof to show, by a preponderance, that he was incompetent to stand trial. Petitioner presented this claim to the California Supreme Court in his petition for review. The Court of Appeal explained the factual background as follows:

A hearing on the restoration issue (§ 1372) began on March 7, 1994, before Judge Kane, and concluded on March 14. [Footnote omitted.] By written ruling, Judge Kane found Harrison competent to stand trial. In so doing, Judge Kane applied the presumption contained in section 1369, subdivision (f) ["It shall be presumed that the defendant is mentally competent unless proved by a preponderance of the evidence that the defendant is mentally incompetent"]. Factually, Judge Kane found that Harrison understood the nature of the criminal proceedings, and that he was able to assist in his defense, although whether he would choose to cooperate with defense counsel was uncertain.

Court of Appeal Opinion, 46.

The Court of Appeal rejected Petitioner's due process claim for two reasons. First, it found that "Judge Kane found the evidence itself established that Harrison was competent, irrespective of any presumption or allocation of burden of proof." Id. at 47. Second, the Court of Appeal found Petitioner's argument foreclosed by the decisions People v. Medina, 505 U.S. 437, 452-453 (1992)(upholding the California Supreme Court's ruling that section 1369 does not violate the due process clause of the federal Constitution) and People v. Rells, 22 Cal.4th 860, 862 (2000)(holding that the application of the presumption under section 1369 does not violate the due process clause).

This court finds that, as Respondent argues, this claim is foreclosed by the Supreme Court's decision in People v. Medina. In Medina, the Court held that it was permissible for California to place on a criminal defendant the burden of proving that he is mentally incompetent and to require a him to make the showing by a preponderance of the evidence.

Id. at 446 - 452. This court therefore finds that Petitioner has failed to carry his burden of demonstrating that the California Supreme Court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d). This claim present no basis for habeas corpus relief.

Ineffective Assistance of Counsel During Restored Competency Hearings

Petitioner contends in the sixth claim of his amended petition that his trial counsel provided ineffective assistance of counsel during the restored competency hearing. Petitioner claims his counsel (1) should not have conceded there was no right to jury trial on the issue of competency; (2) should have asked Judge Kane to take judicial notice of the Judge Quashnick's 1992 findings; and (3) failed to attack the state hospital's findings that he was competent. Petitioner presented the first two arguments to the Court of Appeal on direct appeal and to the California Supreme Court in his petition for review. Petitioner presented the third argument to the California Supreme Court in his petition for writ of habeas corpus.

The Court of Appeal rejected Petitioner's claim regarding a jury trial on the issue of competence, finding that existing authority at the time directly held that a defendant had no such right. See People v. Murrell, 196 Cal.App.3d 822 (1987). Thus, the court found that trial counsel had acted in accordance with the law as it stood at the time of the hearing before Judge Kane. The Court of Appeal expressly declined to reach the issue of whether a defendant had a statutory right to jury trial on the issue of restored competence at the time it issued its opinion. This court finds that Petitioner can demonstrate no deficiency in the Court of Appeal's analysis.

In regard to judicial notice, the Court of Appeal found that trial counsel had discussed Judge Quaschnick's 1992 findings in his argument before Judge Kane.

Further, Judge Kane recited Judge Quaschnick's 1992 in his written ruling. The Court of Appeal found that this clearly demonstrated Judge Kane's awareness of the fact those earlier rulings were made and the contents of those rulings. It concluded that a request for judicial notice would have accomplished nothing more. This court agrees.

Finally, Petitioner argues that trial counsel was ineffective for failing to attack the validity of the state hospital's finding Petitioner was competent. His argument addresses whether the state had the authority under California law to find him incompetent. As Respondent argues, because the trial court focused on whether Petitioner actually was competent, the legality of the state hospital's finding is irrelevant. It was the trial court's finding, not the state hospital's finding, that resulted in Petitioner eventually being found guilty. This court finds that Petitioner has demonstrated no deficiency in trial counsel's decision not to challenge the findings of the state hospital.

The court concludes that Petitioner has failed to carry his burden of demonstrating that the California Supreme Court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d). This claim thus presents no basis for habeas relief.

Trial Court's Failure to Refer Petitioner for Further Competency Hearings Pet. 1 at 94-106

Petitioner contends in the seventh claim of his amended petition that the trial court erred in failing to refer him for further competency hearings based on his bizarre behavior. Specifically, Petitioner claims that Judge O'Neill erroneously failed to suspend criminal proceedings and refer him for a further section 1368 evaluation in August 1994.

Generally, a person whose "mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." Drops v. Missouri, 420 U.S. 162, 172 (1975). The test for competency to stand trial is whether the defendants "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960). An evidentiary hearing is constitutionally compelled at any time that there is substantial evidence that the defendants may be mentally incompetent to stand trial. DeKaplany v. Enmoto, 540 F.2d 975, 980-81 (9th Cir. 1976). "Evidence is substantial if it raises a reasonable doubt about the defendant's competency to stand trial." Id. at 981. However, the function of the trial court is not to determine if the defendant is competent to stand trial, but to decide whether "there is any evidence which, assuming its truth, raises a reasonable doubt about the defendant's competency" and to order an evidentiary hearing on the competency issue if such evidence appears. Id. at 981.

As discussed above, Judge Kane found Petitioner restored to competence on March 16, 1994, and criminal proceedings were reinstated on April 6. On July 25, Petitioner filed a Marsden motion alleging in part that trial counsel was a spy from the KGB and might be a Republican from another planet. On August 4, Petitioner submitted a Marsden letter to Judge O'Neill in which he claimed trial counsel was a liar. Judge O'Neill heard the motion on August 17.

On August 18, 1994, at a case status hearing before Judge Gomes, trial counsel advised the court that he had doubts concerning Petitioner's competence, and that at the conclusion of the Marsden hearing, Judge O'Neill had suggested this as an appropriate course of action. The matter was heard by Judge O'Neill on August 19.

The Court of Appeal explains Judge O'Neill's ruling as follows: Citing People v. Kelly (1992) 1 Cal.4th 495, Judge O'Neill determined that, because a competence hearing already had been held, the focus now was on whether the court had been presented with a substantial change of circumstances or with new evidence which cast serious doubt on the validity of Judge Kane's findings. Judge O'Neill continued: "I found Mr. Glickman to be a very credible witness. I don't in any way dispute what you are saying based on your view of it, Mr. Richardson, but neither one of those is the real issue.

"The real issue is whether or not the testimony is or is not consistent with Judge Kane's findings. If you look at the findings, specifically at page six of the opinion, Judge Kane after hearing the evidence, both factual and hearing argument of Counsel from a legal standpoint, indicates 'that the Defendant,' as Judge Kane puts it, 'picks and chooses the times which he wishes to be cooperative,' end of quote. And then Judge Kane finds that, quote, 'the Defendant is a malingerer and a pathological lier [sic[,' end of quote. That to me the only interference I can draw ...


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