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Kriske v. Evans

May 3, 2010



Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on May 31, 2005 in the Sacramento County Superior Court on charges of first-degree burglary, attempted car-jacking, and resisting an officer. Petitioner asserts four grounds for habeas relief: (1) ineffective assistance of trial counsel based upon a failure to present evidence; (2) ineffective assistance of trial counsel for failure to investigate; (3) ineffective assistance of appellate counsel; and (4) the trial court erred in denying petitioner's request to represent himself at trial. (Pet. at 3-8 & Attach. A.)*fn1 Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.


In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn2, the California Court of Appeal for the Third Appellate District provided the following factual summary:

A jury convicted defendant William Adam Kriske of first degree burglary (Pen. Code, § 459 - count 1; undesignated section references are to this code), attempted carjacking (§§ 664/215, subd. (a) - count 2), and resisting an executive officer with force or violence (§ 69 - count 3). In connection with count 1, the jury found true that another person, other than an accomplice, was in the burglarized residence making the offense a violent felony (§ 667.5, subd. (c)(21)). In bifurcated proceedings, the trial court found two strike priors (§§ 667, subds.(b) - (i), 1170.12), one prior serious felony (§ 667, subd. (a)), and three prior prison term allegations (§ 667.5, subd. (b)) to be true.

The court sentenced defendant to state prison for an indeterminate term of 75 years to life and a determinate term of eight years. Defendant appeals. He contends (1) the trial court erroneously denied his request to represent himself (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta)), (2) insufficient evidence supports his convictions for first degree burglary and attempted carjacking and (3) the trial court erroneously excluded the introduction of exculpatory evidence. We affirm the judgment. Facts and Proceedings About 9:00 p.m. on February 5, 2004, Paul R. heard a loud noise in his backyard. His dog started barking and then ran to the sliding glass door in the living room. Paul R. went to the door and saw a Caucasian man who tried to open the patio door. When Paul R. made eye contact with the man, the man turned around, kicked over a barbecue, and left the back yard in the direction of a house next door belonging to Carolyn L. Paul R. called 911.

Later, Paul R. found that a section of the fence he shared with his other neighbor, Suzanne H., had been knocked down. Next to the fence between his yard and Carolyn L.'s, Paul R. discovered a milk crate, which earlier had been near his house.

About 9:10 p.m., Carolyn L. and three friends, Thomas B., Melissa G. and Heather P., were sitting in Carolyn L.'s family room watching television when someone, later identified as defendant, tried without success to open the sliding glass door. Thomas B. moved the blinds, looked out of the window and saw defendant holding what appeared to be a crowbar or a large stick, possibly an axe handle, in a position ready to hit the door. Thomas B. yelled to the others to run. Melissa G. saw defendant break the glass and then he chased her, Heather P. and Thomas B. out the front door. Melissa G. later told an investigator that it appeared that defendant was "on something."

Meanwhile, Carolyn L. went to her bedroom and got a gun. She went back into the family room and saw that the front door was open and the sliding glass door was broken. Defendant "saunter[ed]" from the kitchen area to the family room and stood in front of the television at which point Carolyn L. fired a shot over his head. Defendant put his hands over his ears, screamed and looked at Carolyn L. He then ran past Carolyn L. through the family room and dining room and Carolyn L. fired another shot over his head as she yelled "stop, freeze."

Defendant ran down some stairs into the garage, which had been converted into the front room of the house. He pulled down some wooden shutters and tried unsuccessfully to break the glass behind them. Defendant turned towards Carolyn L., who was about 20 feet away, and she fired again until her gun was empty. Defendant ran back to the glass and kicked it. Carolyn L. went to her bedroom, got another gun, and went back to the front room where defendant had kicked and "stumbl[ed] over things" and was continuing to do so. She yelled at him to stop and fired her gun about three times towards the noise but high so she would not hit him. Glass shattered as defendant crashed through a window next to the front door.

As Carolyn L. went to the front door, she saw an axe handle on the floor near the entrance to the kitchen. It belonged to her and had been outside next to the sliding glass door. At the front door, Carolyn L. saw defendant crawling backwards towards her on a ledge at the front of the house. He got off the ledge onto the front porch, turned around and faced her, two feet away. She shot at him but he did not react so she shot at him again. She thought she shot him in the arm and there was blood on her porch. Defendant turned and ran towards the street.

During the whole time, Carolyn L. was fearful and did not know whether someone else was in her home. As a former correctional officer, Carolyn L. had been trained to shoot to wound or kill inmates. She did not consider defendant's reactions to be normal, his eyes were "huge," his "demeanor was erratic" and he never said anything. Carolyn L. fired a total of nine shots at defendant. Defendant ran across the street and climbed on a motorcycle parked in a driveway, but as he did, the owner and the owner's friends came out and chased defendant away. After defendant fled, the motorcycle was covered in blood.

Defendant, bleeding and shirtless with a T-shirt wrapped around his left arm, ran down the street toward a church. According to Lisa S. who stood in the church parking lot, defendant looked "really delirious, like he was out of it," possibly in "shock" and "didn't look like he was all there at the time." According to witnesses, defendant was incoherent, "delirious," "out of it," staggering and "stumbling," walking "in a daze" or "dizzily," possibly "intoxicated."

Defendant approached Kristopher A. who was in or near his pickup truck in the church parking lot. Defendant mumbled to Kristopher A. to "get out, mother fucker" or "get out of my way, or come here," and grabbed Kristopher A.'s shirt with both hands. Kristopher A. thought defendant might have been intoxicated. Kristopher A. pushed defendant back and said to "get the F out of here." Another man came to Kristopher A.'s aid and defendant stumbled down the street with others in pursuit.

A motorcycle patrol officer arrived and asked defendant if he was injured or needed help. Defendant ignored him and continued to walk down the street. The officer followed him and again asked if defendant needed help. At this point, defendant ran across a street to a parking lot. Again, the officer followed and then ordered defendant to stop and sit down. Defendant did. Although to the officer defendant seemed alert and not dazed, defendant mumbled and was agitated and uncooperative. Defendant had a gunshot wound on his wrist or forearm.

Sheriff deputies and paramedics arrived at the parking lot. A paramedic described defendant as agitated and irritable and, when questioned, defendant became more agitated, responding repeatedly with profanity and abusive language. He refused to identify himself or disclose his medical history although at one point he claimed his name was Robert Gerberding.

Defendant was strapped to a gurney and put into the ambulance. Defendant unbuckled one strap on the gurney and, although told not to, he reached for the second strap. When Deputy Sheriff David Perkins put his hand on top of defendant's hand, defendant unbuckled the second strap, threw Perkins's hand off, got up and came at Perkins. They struggled. Even though threatened with pepper spray by Deputy Francis Nervo, defendant refused the deputy's order to get back on the gurney. Several deputies eventually handcuffed defendant.

On the way to the hospital, Deputy Nervo asked defendant if he tripped over a barbecue in a backyard and defendant replied, "No, I kicked it over." Defendant continued to claim he was Robert Gerberding but had no identification on him. Deputy Nervo said defendant did not display symptoms suggesting that he was under the influence of alcohol or drugs.

At the jail, it took several deputies to get defendant's fingerprints. Once they identified him they found he was wanted on another matter.

Angela A. testified that earlier in the evening, defendant, who was a family friend, stopped by her house, which was on the same street as Carolyn L.'s house. Defendant walked in the house without knocking or ringing the bell, something he had never previously done. He seemed "anxious" and "wild" or "crazy-looking." He was sweaty and did not seem normal. Defendant asked where her husband was and she said her husband was in the garage. Based on prior experiences with family members as well as her husband, Angela A. associated defendant's symptoms with illegal drug use. She admitted on cross-examination that defendant did not mumble when he asked where he could find her husband.


Petitioner appealed from his conviction to the California Court of Appeal for the Third Appellate District. On October 30, 2006, the judgment of conviction was affirmed. (Resp't's Lod. Doc. 6.)

On December 5, 2006, petitioner filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 7.) On January 17, 2007, the California Supreme Court summarily denied the petition for review. (Resp't's Lod. Doc. 8.)

On May 29, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District, claiming that his trial and appellate counsel had rendered ineffective assistance. (Resp't's Lod. Doc. 12.) On July 5, 2007, the California Court of Appeal denied that petition with citations to In re Steele, 32 Cal.4th 682, 692 (2004) and In re Hillery, 202 Cal. App.2d 293 (1962). (Id.)

On July 11, 2007, petitioner filed a habeas petition in the Sacramento County Superior Court, raising the same claims of ineffective assistance by trial and appellate counsel that he had raised in his habeas petition filed in the California Court of Appeal. (Resp't's Lod. Doc. 9.) On August 23, 2007, the Superior Court denied that petition in a reasoned decision on the merits. (Resp't's Lod. Doc. 10.)

On October 19, 2007, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, again claiming that his trial and appellate counsel rendered ineffective assistance. (Resp't's Lod. Doc. 13.) That petition was summarily denied by order dated April 9, 2008. (Resp't's Lod. Doc. 14.)

On July 22, 2008, petitioner filed his federal habeas petition in this court. Respondent filed an answer on October 14, 2008, and petitioner filed a traverse on March 10, 2009.


I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) 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

(2) 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.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo.

Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

II. Petitioner's Claims

A. Ineffective Assistance of Counsel

Petitioner claims that his trial counsel rendered ineffective assistance by: (1) failing to present evidence to support a defense based upon voluntary intoxication; and (2) failing to investigate a defense of voluntary intoxication and/or self-defense. (Pet. at 13-21.) Petitioner also claims that his appellate counsel rendered ineffective assistance in failing to raise a claim of ineffective assistance of trial counsel on appeal. (Id. at ...

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