The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
Order Regarding Exhaustion of Claims in Second Amended Petition
Petitioner Keith Edward Adcox ("Adcox"), a state prisoner facing capital punishment, filed in federal court seeking habeas relief December 1, 1992.
J. Jeffries Goodwin, Esq., and Eric K. Fogderude, Esq., were appointed as lead and second counsel, respectively, to represent Adcox in his federal proceedings. Adcox filed his federal petition for writ of habeas corpus April 3, 1995, and filed an amended petition September 7, 1995. Seven claims, and portions of four other claims, were denied on the merits June 7, 1998. Fifteen claims were determined to be completely unexhausted, and six claims were found to be partially unexhausted. The proceedings were subsequently held in abeyance pending the exhaustion of state remedies. Adcox filed his state exhaustion petition October 8, 1998. While the matter was pending state exhaustion, Mr. Goodwin moved to withdraw as counsel, and the Federal Defender for the Eastern District of California, Capital Habeas Unit, was appointed in his place as lead counsel March 1, 2002. The California Supreme Court did not hold an evidentiary hearing and summarily denied Adcox's state exhaustion petition, both on the merits and as untimely, January 3, 2007. Upon resumption of the federal proceedings, Wendy C. Peoples, Esq. was substituted as co-counsel in place of Mr. Fogderude. Adcox filed his second amended petition for writ of habeas corpus February 28, 2008. Respondent Robert Wong ("the Warden") filed an answer January 26, 2009.
The parties filed a Joint Statement on Exhaustion February 25, 2009, agreeing that nine claims or subclaims are unexhausted, and that three other claims are unexhausted to the extent they rely on other unexhausted claims. The parties do not agree about the exhaustion status of another ten claims or subclaims. The parties submitted a stipulation to a briefing schedule for the issue of abeyance, for submission of merits briefs, and for motions for discovery and evidentiary hearing. The parties' proposed briefing schedule was adopted by the Court in an order filed March 11, 2009.
CLAIMS AGREED UNEXHAUSTED
1. Claim III: The trial court's denial of change of venue violated Adcox's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments, insofar as it asserts an Equal Protection violation.*fn2
2. Claim V (A)(4)-(6): Prosecutorial Misconduct during the Guilt Phase Deprived Adcox of a Fair Trial; Omissions of Trial Counsel and Court in Failing to Curb this Misconduct Compounded Prosecutorial Overreaching:
(4) Failing to Correct and Capitalizing on Misleading Testimony;
(5) Urging Inconsistent Theories at Petitioner's and Love's Separate Trials; and
(6) Failing to Disclose Relevant, Material, and Exculpatory Information.
3. Claim VI: The trial court's improper admission of Annette Tillery's testimony that was the product of an unconstitutional plea bargain violated Adcox's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments, insofar as it alleges ineffective assistance of counsel for failing to request a special prosecutor.
4. Claim XVI: Ineffective assistance of appellate counsel deprived Adcox of his rights to Due Process, Equal Protection and to present an affirmative appeal, insofar as it is related to Claim XX [Ineffective Assistance of Counsel], except for allegations relating to XX(A)(2)(c)(ii) [Giudice's failure to adequately cross-examine prosecution witness Michael Adcox].
5. Claim XX(A)(2)(a)-(b): Ineffective assistance by Giudice: (a) failure to conduct adequate voir dire; and (b) failure to raise the prosecution's conflicting roles as an additional ground for a change of venue or for other protective measures.
6. Claim XX(A)(2)(c)(iii): Ineffective assistance by Giudice, failure to adequately cross-examine prosecution witness Michael Adcox.
7. Claim XX(A)(2)(d)(i)-(iii): Ineffective assistance by Giudice, failure to present evidence consistent with the theory of defense: (i) from Bob Heitman; (ii) from Rhonda Voorheis; and (iii) of Love's flight.
8. Claim XX(A)(2)(g): Ineffective assistance by Giudice: (g) failure to request jury poll to determine whether jurors were exposed to prejudicial information.
9. Claim XX(A)(3): Cumulative impact of deficient performance at guilt, to the extent this claim relies on unexhausted allegations in Claim XX(A) [Ineffective assistance throughout guilt phase].
10. Claim XXV: Vague jury instructions permitted the jury to consider Adcox's youth in aggravation but not in mitigation, to the extent this claim relies on constitutional ...