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Adcox v. Cullen

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 1, 2010

KEITH EDWARD ADCOX, PETITIONER,
v.
VINCENT CULLEN, ACTING WARDEN OF SAN QUENTIN STATE PRISON, RESPONDENT.

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

DEATH PENALTY CASE

Order Regarding Petitioner's Motion for Stay and Abeyance of Second Amended Petition (Doc. 140) and Amendment of March 31, 2009 Order on Exhaustion (Doc. 139)

Petitioner Keith Edward Adcox ("Adcox"), a state prisoner facing capital punishment, filed in federal court seeking habeas relief December 1, 1992. Counsel was appointed to represent Adcox in his federal proceedings September 2, 1993. Adcox filed his initial 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 11, 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, lead counsel J. Jeffries Goodwin moved to withdraw, and the Federal Defender for the Eastern District of California, Capital Habeas Unit, was appointed. The California Supreme Court summarily denied Adcox's state exhaustion petition, both on the merits and as untimely, January 3, 2007. Upon resumption of the federal proceedings, Wendy Peoples was substituted as co-counsel in place of Eric Fogderude. Adcox filed his second amended petition for writ of habeas corpus February 28, 2008.

Respondent Vincent Cullen ("the Warden") filed an answer January 26, 2009. The parties filed a Joint Statement on Exhaustion February 25, 2009, agreeing that six claims or subclaims were unexhausted. (Claims V(A)(4)-(6); VI; XVI; XX(A)(2)(a), (b), (c)(iii), (d)(i)-(iii), (g); XLIII; and XLIV.) The parties did not agree about the exhaustion status of another ten claims or subclaims. An order on exhaustion was issued March 31, 2009, finding the ten claims or subclaims where the parties did not agree about the exhaustion status to be exhausted. Adcox filed his second motion for stay and abeyance May 29, 2009, the Warden filed an opposition to stay and abeyance June 26, 2009, and Adcox filed a reply July 10, 2009.

While Adcox's second motion for stay and abeyance was pending, he filed a fourth state habeas petition (case number S180912) with the California Supreme Court on March 12, 2010, presenting Claims V(A)(4), (5) and (6), XVI, XX(A)(2)(a), (b), (c), (d), and (g); XX(A)(3), and XLIII; as well as three claims which were not included in the second amended federal petition - cumulative error from the prosecutor's misconduct, cumulative error from all asserted claims, and a juror misconduct claim asserting the misuse of extraneous information. Claims VI and XLIV, which the parties had agreed were unexhausted, were not presented to the state court in Adcox's fourth state habeas petition. The California Supreme Court directed that an informal response to the fourth state petition, which is anticipated to be filed by December, 2010. Concurrent with filing his fourth state habeas petition, Adcox filed in this court a notice of supplemental authority asserting a Ninth Circuit case issued March 5, 2010, expressly held that amendments to a federal habeas petition filed prior to enactment of the AEDPA is not subject to the one-year statute of limitations, even when it is amended after the AEDPA's effective date. See Smith v. Mahoney, 596 F.3d 1133, 1149 (9th Cir. 2010).

Claim XLIII - Unconstitutional Delay

Adcox asserts the factual predicate for this claim only came into existence when the California Supreme Court failed to timely dispose of his direct appeal and habeas petitions and denied relief. Adcox asserts the nearly quarter century of delay in his proceedings have resulted in the loss of potentially exculpatory and/or mitigating evidence, violated due process, and that his execution now would be cruel and unusual punishment. Adcox alleges he has been prejudiced by the deaths of numerous witnesses who have died without his being able to preserve their testimony, and that documentary evidence has been lost or destroyed.

The Warden contends Adcox could have raised this claim at numerous points in the past: when his direct appeal was final in 1989; prior to the denials of his first or second state habeas petitions in 1992; before the exhaustion order on his federal petition in 1998; or during the pendency of his third state habeas petition from 1998 to 2007.*fn1 The Warden asserts Adcox has not shown good cause for failing to exhaust this claim previously, that the claim is not supported by existing federal law and so would be barred under Teague v. Lane, 489 U.S. 288 (1989), and that no loss of evidence which would have a harmful or injurious effect has been shown. The Warden denies the proceedings to review Adcox's death sentence have been unreasonably or excessively delayed, alleging the delay due to the automatic appeal was reasonable, and that all other proceedings were voluntarily instituted by Adcox. The Warden contends, in light of Adcox's failure to exhaust this claim, that there is insufficient information on which to say whether certain witnesses have died during the pendency of the proceedings, whether those witnesses (or others who have died) could have provided material information or testimony, or whether records have been lost.

Conclusion

The California Supreme Court's review of Adcox's direct appeal and first round of state habeas lasted nine years. Adcox took six years to file his federal petition and state exhaustion petition. The California Supreme Court's denial of the state exhaustion petition occurred about eight years later. Adcox took over a year to file his amended federal petition.

Lengthy incarceration on death row during the pendency of capital appeals does not violate the Constitution's prohibition against cruel and unusual punishment. McKenzie v. Day, 57 F.3d 1493, 1494 (9th Cir. 1995) (en banc); see also Smith v. Mahoney, supra, 596 F.3d at 1153 (rejecting same claim under Teague).

Although Adcox raises this claim in his initial federal proceedings, unlike McKenzie's claim which was raised in a subsequent petition just prior to his scheduled execution, the reasons for rejecting the claim remain the same. "A defendant must not be penalized for pursuing his constitutional rights, but he also should not be able to benefit from the ultimately unsuccessful pursuit of those rights." McKenzie v. Day, 57 F.3d 1461, 1466 (9th Cir. 1995) (panel opinion denying stay of execution). Claim XLIII is denied on the merits. Claims as to which some legal grounds are unexhausted Two of the claims agreed by the parties to contain some unexhausted legal grounds were previously denied on the merits. See June 11, 1998 Memorandum and Order Regarding Dismissal, Exhaustion and Abeyance (Doc. No. 75). The portion of Claim III asserting an Equal Protection violation from the denial of a change of venue, and Claim XXV, regarding the penalty instructions on age, agreed to be unexhausted "to the extent it relied on constitutional provisions other than the Eighth Amendment," were previously denied on the merits. Adcox states Claims III and XXV were retained in his second amended petition to avoid possible confusion and to preserve possible appellate review. Abeyance is not required for these claims.

Amendment of March 31, 2009 Exhaustion Order

Claim V(A)(6) - Failure to Disclose Second Side of Tape of Tillery Interview

Adcox argues Tillery's earliest statements about the shooting are pivotal since her testimony helped establish that the killing was intentional and that Adcox was the shooter. Adcox asserts the interview reveals Tillery's confusion about who said what, that it would have supported the defense theory that there was never a plan to murder the victim, and that it could have effectively impeached her testimony, calling into question the prosecution's theory about how the shooting occurred. Adcox contends the suppressed evidence also was relevant to sentencing, as it would likely have produced lingering doubt about his involvement in the murder, and shown the favorable treatment given to Tillery by the prosecution. The Warden asserts Adcox was on notice that there was more to the interview than was reflected on the transcript, since a report of the same interview reveals significantly more content than is reflected on the transcript, and the transcript ends in the middle of a sentence, suggesting there was more to the interview. The Warden observes the complete tape was obtained through informal discovery, but that Adcox provides no reason why informal discovery was not, or could not have been, pursued earlier. Also, the Warden suggests it would appear Adcox will be permitted to rely on the second side of the tape to support his claim that Tillery was intimidated into testifying as she did.

Adcox replies he had no reason to suspect that the interview with Tillery had not been fully transcribed and provided to trial counsel. Adcox contests the Warden's description of the transcript as ending mid-sentence, asserting it ends mid-page with Tillery stating "I want to go home. (whispered) (further inaudible)." This follows an announcement by the DA Investigator that he was "done" with the questioning, and appears to be nothing more than quiet conversation occurring before Tillery was escorted from the interrogation room. Adcox contends the belief this was the end of the interview is reinforced by the document stamp which appears only on that page, indicating it was the conclusion of the document. Adcox asserts reasonable persons would not have realized the transcript was incomplete.

The Warden contends this claim is without merit because the allegedly new information is not material. Adcox's argument, based on the second side of the tape, that Tillery said "they" shot Orozco, does not show that Love was the actual shooter nor exculpate Adcox, and is not significantly different from other statements Tillery made. The Warden observes Adcox testified he told Tillery that he had shot the victim, as well as described how Love shot him. The Warden asserts that impeachment of Tillery on this point would have been immaterial. Adcox asserts the tape recording was obtained through state court discovery, which was not authorized until March 2004, and after learning through informal discovery that the tape recording was in the possession of the Tuolumne County Sheriff's department. Adcox claims it was a complete surprise to learn an entire side of the tape had not previously been transcribed. The Warden contends the second side of the taped interview does not contain statements which significantly differ from Tillery's other statements or her testimony, and contains no threats which could have influenced Tillery.

Conclusion

The submitted briefs of the parties regarding abeyance indicated their agreement that this claim was unexhausted, and that conclusion was adopted in the March 31, 2009 exhaustion order. Subsequent review of the record reveals that conclusion is erroneous. This claim of prosecutorial misconduct was presented in Claim V of Adcox's amended federal petition filed September 7, 1995. The tape recording and transcript are admissible under Vasquez v. Hillery, 474 U.S. 254 (1986), as additional evidence in support of the petition. Claim V(A)(6) is exhausted.

Claim XVI - Ineffective Assistance of Appellate Counsel

Claim XVI, regarding ineffective assistance of appellate counsel, was agreed to be partially unexhausted with respect to Adcox's "rights to Due Process, Equal Protection and to present an affirmative appeal, insofar as it was related to Claim XX, ineffective assistance of counsel, except for allegations relating to subclaim XX(A)(2)(c)(ii) (Guidice's failure to adequately cross-examine prosecution witness Jerry Chisum). The Warden contends Adcox does not attempt to justify his failure to exhaust this claim or to show that it has merit. Thus, the Warden asserts Adcox should not be permitted a further stay to exhaust this claim.

Conclusion

The submitted briefs of the parties regarding abeyance indicated their agreement that certain legal bases for this claim were unexhausted. Review of the record in these proceedings reveal that conclusion is erroneous. This claim of ineffective assistance of appellate counsel was presented to the state court in Adcox's third (exhaustion) petition, filed October 8, 1998, as Claim XIV, and included violations under the rights of Due Process, Equal Protection, and to present an affirmative appeal. Claim XVI is exhausted.

The Parties' Arguments Regarding Stay and Abeyance*fn2

Adcox argues Rhines v. Weber, 544 U.S. 269 (2005), supports a stay of federal habeas proceedings on a petition containing unexhausted claims where the petitioner has good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication he has been intentionally dilatory. Id. at 278. Adcox asserts he meets each of the requirements from Rhines: first, there is good cause for his failure to exhaust because changes in state law have only recently allowed discovery of the facts supporting the unexhausted claims; second, the unexhausted claims have sufficient merit to justify stay and abeyance; and third, he has not engaged in intentionally dilatory litigation tactics which would justify denial of a stay. Adcox concedes it is somewhat unusual for a second round of abeyance to be ordered by a district court, but contends it has happened in other capital cases. Adcox further asserts the lack of a stay could result in his losing the right to federal review of his unexhausted claims, and issuing a stay will serve the legitimate interests of this Court and the state courts.

The Warden opposes further stay and abeyance, arguing that stay and abeyance is only available in limited circumstances and should be refused where the unexhausted claims are plainly meritless. Rhines, 544 U.S. at 277. The Warden asserts the newly-discovered evidence on which Adcox's request for abeyance is based could have been discovered with reasonable diligence and the proffered new information adds little to the claims. Further, the Warden asserts the claims based on new facts are barred by the one-year AEDPA statute of limitations because they are not based on the "same core of operative facts" as any properly-raised claim. See Mayle v. Felix, 545 U.S. 644 (2005).

Adcox replies that Rhines only requires a single meritorious claim to justify abeyance, so requiring briefing and consideration of why every unexhausted claim was not raised in the prior proceeding and whether it has potential merit is an unnecessary expenditure of resources. Adcox argues that if there is justification for staying the federal proceedings based on a single claim, no genuine purpose is served to determine whether the stay would be justified for other claims. Newly Discovered Evidence Adcox asserts Claims V(A)(4) and (5), alleging prosecutorial misconduct, are based on facts that were only recently discovered after obtaining and reviewing the transcript from co-defendant Howard Love's trial. Adcox claims neither he, nor his attorneys, had any reason to think the transcript from Love's trial would reveal the basis for a constitutional claim in his case. The transcript was not available from prior counsel, the trial court, the appellate court, or the state archive, but was eventually obtained by tracking down the retired court reporter.

Smith v. Mahoney, 596 F.3d 1133 (9th Cir. 2010) held the one-year AEDPA statute of limitations does not apply to post-AEDPA amendments if the petition was filed before the effective date of the AEDPA. Id. at 1148. Similarly, Smith found the relation-back doctrine, applied to habeas petition amendments in Mayle v. Felix, 545 U.S. 644 (2005), does not apply to amendments of petitions that were filed before the AEDPA was enacted. The Ninth Circuit observed that the petition at issue in Mayle was filed after the AEDPA's effective date and concluded that the Supreme Court's interpretation of the relation-back doctrine there was resolved in the context of the AEDPA's intents and constraints. Id. at 1149-1150.

Adcox argued that Rhines v. Weber, supra, 544 U.S. 269, provides the standard for granting abeyance of his second amended federal habeas petition. However, under the holding of Smith v. Mahoney, like the relation-back doctrine in Mayle, the standard in Rhines is not applicable to this case. The petition at issue in Rhines also was subject to the AEDPA, as was the petition in Mayle, so the standard from Rhines does not apply to Adcox's pre-AEDPA petition.

Prior to the enactment of the AEDPA, McCleskey v. Zant, 499 U.S. 467 (1991) set the standard regarding the showing a petitioner must make to avoid abuse of the writ. Once the government met their burden of pleading a petitioner's abuse of the writ (by showing the claims now raised were not in a previous habeas petition), the burden shifts to the petitioner to show cause for the failure to raise an issue and actual prejudice resulting from the errors complained of. Id. at 494 (applying the standard from procedural default cases to instances of abuse of the writ). Cause "requires the petitioner to show that 'some objective factor external to the defense impeded counsel's efforts' to raise the claim." Id. at 493 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Objective factors which constitute cause include governmental interference, the reasonable unavailability of a factual or legal basis for the claim, or constitutional ineffective assistance of counsel. McCleskey, 499 U.S. at 494. If a petitioner cannot establish cause, the court can still excuse failure to raise the claims in an earlier petition if the petitioner can show that dismissal of the claim will result in a fundamental miscarriage of justice -- the conviction of an innocent person. McClesky, 499 U.S. at 494.

The doctrines of procedural default and abuse of the writ are both concerned with the significant costs of federal habeas corpus review, especially regarding the finality of state convictions. McCleskey, 499 U.S. at 490-491. When a habeas petitioner obtains a new trial, the "erosion of memory" and "dispersion of witnesses" prejudice the government and diminish the chances of a reliable criminal adjudication. Id. at 491. Federal habeas review of state convictions frustrate "the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Id. Habeas corpus has further costs: it burdens scarce federal judicial resources; it threatens the capacity of the system to resolve primary disputes; and it may give litigants incentives to withhold claims for manipulative purposes or disincentives to present claims when evidence is fresh. Id. at 491-492. "If collateral review of a conviction extends the ordeal of trial for both society and the accused, the ordeal worsens during subsequent collateral proceedings." McCleskey, 499 U.S. at 492 (citing Engle v. Isaac, 456 U.S. 107, 126-127 (1982)). If the review of a conviction in the first round of federal habeas offends federalism and comity and stretches resources, examination of new claims raised in a second or subsequent petition increases the offense to federalism and comity and spreads resources thinner still. Id. The doctrines of procedural default and abuse of the writ impose on petitioners a burden of reasonable compliance with procedures designed to discourage baseless claims and to keep the system open for valid claims. Both abuse of the writ and procedural default doctrines are designed to vindicate the State's interest in the finality of its criminal judgments and to lessen the injury to a State from reexamination of a state conviction on a ground that the State did not have the opportunity to address the claim at a prior, appropriate time. Id. at 493.

Claim V(A)(4) - Prosecutorial Misconduct: Examination of Criminalist Chisum

In the opening statement at Adcox's trial, the prosecutor maintained the victim Orozco had been shot from a distance of 30 feet, but on direct examination Chisum's opinion was that the fatal shot was fired from a distance of about eight feet. The prosecutor used Chisum's testimony to vigorously argue that Adcox's account of the events was false. Months later, at Howard Love's trial, the prosecutor elicited testimony from Chisum asserting the evidence permitted two theories about where the shooter was positioned, but stating the evidence favored the account consistent with Adcox's testimony.

By failing to elicit Chisum 's opinion that the crime occurred in a manner consistent with Adcox's testimony, Adcox asserts the prosecutor failed to correct misleading testimony, which along with the use of inconsistent theories at the two trials, violated Adcox's rights. Adcox contends that in light of the jury's struggle over whether to credit his testimony, the prosecutor's reliance on misleading testimony that contradicted his account of the crime had a substantial and injurious effect on the verdicts at both stages of the trial.

Adcox's counsel assert the transcript of the testimony of criminalist Jerry Chisum from Love's trial was not available from the Court of Appeal in February 2007. The Warden contends the Court of Appeal did have the transcript during Love's appeal in 1984-85, and that a copy of the transcript has been in the possession of the Attorney General's Office since 1984. The Warden asserts reasonable diligence required Adcox to request a copy from the Attorney General if the transcript was not available from the Court of Appeal. Regardless, the Warden argues that Chisum's testimony at Love's trial is inconsequential to the asserted claim, and that Chisum's testimony from Adcox's preliminary hearing already provided support for the asserted claim. The Warden contends this claim lacks substance because it only shows a good faith uncertainty as to the exact place from which the fatal shot was fired, and regardless of whether the shot was fired from eight feet away or from 15 to 20 feet away, either place is inconsistent with Adcox's testimony. Further, the Warden asserts it is likely Adcox will be permitted to present Chisum's testimony from Love's trial in support of his claim asserting ineffective assistance of counsel with respect to the handling of Chisum's testimony.

Adcox replies that Chisum's testimony about the distance between the shooter and the victim was extremely important, because if the jury credited it, Adcox's account of the crime was rendered implausible and the jury's finding on Adcox's credibility was critical to his defense. Adcox asserts he cannot be faulted for failing to earlier secure the Love transcript, as he had no reason to suspect Chisum would have retreated from the opinion expressed at his trial. Further, Adcox contends that state procedures require the existence of triggering facts before an investigation may be conducted, so counsel for Adcox on his state appeals were under no duty to obtain the Love transcript.

The Warden argues this claim is without merit because Chisum was questioned by both the prosecution and defense on the exact point about which Adcox complains. Chisum testified he changed his opinion regarding the distance from which the fatal shot was fired based on his examination of the victim's hat and test shots fired with Adcox's gun and ammunition. Further, the Warden denies that Chisum's testimony at Love's trial was in any way inconsistent with his testimony at Adcox's trial, and denies that the prosecutor relied on a different theory regarding the distance at Love's trial. The Warden asserts the prosecutor's factual theories were controlled by the evidence available at the time and denies any bad faith or misconduct.

Claim V(A)(5) - Prosecutorial Misconduct: Theory re: the Victim's Wallet

At Adcox's trial, the prosecutor attempted to establish that Adcox was in possession of the victim's wallet, encouraging the jury to infer from that fact that Adcox's account of the crime was fabricated. Adcox alleges the prosecutor switched tactics at Love's trial and argued, consistent with Adcox's account, that Love was the one who removed the victim's wallet. Adcox asserts this use of inconsistent theories violated his rights, and given the importance to his defense of the jury's belief in his testimony, the prosecutor's manipulation of the evidence had a substantial and injurious influence on the verdicts. The Warden asserts this claim lacks substance, as the prosecutor did not pursue inconsistent theories about who had the victim's wallet after the shooting, but consistently held to the position that Love took the wallet from the victim because Adcox did not want to touch the body, but that Love gave the wallet to Adcox, who then removed the money and discarded the wallet. This was consistent with Adcox's testimony that he received the wallet from Love, and is consistent with the evidence about which Adcox now complains. The Warden contends the record refutes the factual predicate of this claim and precludes any finding of prejudice, and that Adcox has failed to show good cause for not exhausting this claim earlier.

To avoid dismissal of these claims due to abuse of the writ, Adcox must show that counsel's efforts' to raise the claims were impeded by an objective factor external to the defense: e.g., governmental interference, the reasonable unavailability of a factual or legal basis for the claims, or constitutional ineffective assistance of counsel. If an external impediment cannot be shown, the failure to raise the claims in an earlier petition can still be excused if Adcox can show that dismissal of the claims will result in a fundamental miscarriage of justice -- i.e., affirming the conviction of an innocent person.

Adcox presented Claims V(A)(4) and (5) for the first time in his amended federal petition filed February 28, 2008. The factual predicate for these claims were contained in a public court record. Although Adcox asserts the transcript from Love's trial was not available from the Court of Appeal in February 2007, it was able to be obtained from the court reporter, and the Warden contends the California Attorney General has possessed a copy of the transcript since 1984.

Adcox has failed to show his efforts to raise these claims were impeded by an objective factor external to the defense. Adcox's arguments that he had no reason to suspect Chisum would have retreated from the opinion he expressed at Adcox's trial, and that state procedures require the existence of triggering facts before an investigation may be conducted, so his state appellate counsel were under no duty to obtain the Love trial transcript, indicate his counsel was not ineffective for failing to raise these claims. Also, Adcox has failed to show the Love trial transcript was unavailable due to governmental interference or some other factor external to the defense. Finally, Adcox has not shown that dismissal of these claims will result in a fundamental miscarriage of justice -- i.e., affirming the conviction of an innocent person.

Conclusion

Since the government met their burden of pleading abuse of the writ by asserting these claims were not in Adcox's previous habeas petition, the burden shifted to Adcox to show cause and actual prejudice. Adcox has failed to show cause, or some objective factor external to the defense which impeded counsel's efforts' to raise these claims. Claims V(A)(4) and (5) are dismissed under abuse of the writ.

New Ineffective Assistance of Counsel Claims

Adcox presented these claims for the first time in his 2008 amended federal petition. The parties agree these claims have not been presented to the state court.

Claim XX(A) - ineffective assistance of counsel at guilt phase:

a. Subclaim (2)(a) - Guidice's failure to adequately voir dire re: the victim's church membership;

b. Subclaim (2)(b) - Guidice's failure to raise the conflict by Vanover;

c. Subclaim (2)(c)(iii) - Guidice's failure to elicit on cross examination of Michael Adcox his statement of that he observed burn marks on Love's face shortly after the shooting;

d. Subclaim (2)(d)(i)-(iii) - Guidice's failure to present evidence: (i) consistent with the defense theory from defense investigator Bob Heitman regarding the statement by Richard Carr that Love admitted shooting the victim; (ii) from Rhonda Voorheis regarding Tillery's reputation as a liar; and (iii) regarding Love's flight after the crime;

e. Subclaim (2)(g) - Guidice's failure to request a poll of the jury regarding their potential exposure to newspaper articles about the case;

f. Subclaim (3) - cumulative impact of errors by Lamb and Guidice.

The Warden asserts none of these claims are prejudicial. The Warden contends, regarding claim (2)(c)(iii), Michael Adcox's statement about burn marks on Love's "cheeks and forehead" are not consistent with having fired a modern small-bore rifle like the one used to shoot the victim, disputing Adcox's contrary allegation in his petition at page 120. The Warden states, regarding claim (2)(d)(i)-(iii), that the testimony of both the defense investigator and Carr revealed that Love admitted shooting the victim; that Tillery's veracity was attacked by other means making this evidence cumulative as well as moot since Adcox testified almost everything in Tillery's testimony was true; and that there was ample evidence Adcox, Love and Tillery fled after the murder, but the fact Love "eluded capture longer" does not show he had more consciousness of guilt than Adcox. The Warden asserts, regarding Claim (2)(g), the California Supreme Court on direct appeal found no reason to believe the jurors had read any of the allegedly prejudicial articles in violation of the court's admonition People v. Adcox, 47 Cal.3d 207, 252-253 (1988) (denying Adcox's claim of trial court error for failing to sua sponte voir dire the jury regarding statements attributed to the prosecutor in newspaper articles, finding no abuse of discretion as there was no affirmative evidence that any juror had read any of the articles in question, the defense counsel characterized the quotes as "innocuous," and the trial court admonished the jury "not to read any newspapers or listen" to any report connected with the case). The Warden further assserts competent counsel could decide to rely on a mistrial motion based on the news articles instead of requesting that the jurors be questioned, which might emphasize the articles in the jurors' minds or confirm that Adcox was not harmed. The Warden concludes that since the news articles were not incurably prejudicial and there is no reason to believe any of the jurors were exposed to prejudicial material, there is no reasonable probability of a different result.

As above, since the Warden has met their burden of pleading abuse of the writ, Adcox must show some objective factor external to the defense impeded presentation of these claim. If an external impediment cannot be shown, the failure to raise the claims in an earlier petition can still be excused if Adcox can show that dismissal of the claims will result in a fundamental miscarriage of justice -- i.e., affirming the conviction of an innocent person.

Adcox presented these claims for the first time in his amended federal petition filed February 28, 2008. The factual predicates underlying these claims were contained in the transcript of Adcox's trial, defense counsel's files, or local newspaper articles. Adcox has failed to show his efforts to raise these claims were impeded by an objective factor external to the defense. Adcox has not shown these claims could not be raised because his appellate counsel was ineffective*fn3 , or due to governmental interference or some other factor external to the defense. Finally, Adcox has not demonstrated that dismissal of these claims will result in affirming the conviction of an innocent person.

Conclusion

Since the government met their burden of pleading abuse of the writ by asserting these claims were not in Adcox's previous habeas petition, the burden shifted to Adcox to show cause and actual prejudice. Adcox has failed to show cause, or some objective factor external to the defense which impeded the efforts to raise these claims. Subclaims XX(A)(2)(a), (b), (c)(iii), (d)(i)-(iii) and (g), and (A)(3) to the extent it relies on the above allegations in XX(A)(2), are dismissed under abuse of the writ.

Claims Not Presented in Fourth State Habeas Petition

Claim VI (trial counsel's failure to request a special prosecutor due to the hiring of Tillery's counsel Vanover, who had previously negotiated her plea agreement, by the DA's office and his subsequent involvement in Adcox's case) and Claim XLIV (lack of California jurisdiction in the Stanislaus National Forest) were agreed by the parties to be unexhausted. Adcox did not include these claims in his fourth state habeas petition filed with the California Supreme Court March 12, 2010. In light of the failure to present these claims to the state court, they are considered abandoned and are dismissed.

ORDER:

Adcox's motion for stay and abeyance is DENIED. The parties' agreement regarding the lack of exhaustion of Claims V(A)(6) and XVI, adopted in the March 31, 2009 Exhaustion Order, is erroneous and those claims are exhausted. Claims V(A)(4) and (5) are dismissed as abusive. Claims XX(A)(2)(a), (b), (c)(iii), (d)(i)-(iii) and (g); XX(A)(3), to the extent it relies on XX(A)(2), are dismissed as abusive. Claims VI and XLIV are considered abandoned and are dismissed.

Adcox's brief of the merits of the remaining claims in his petition is due 120 days from the date of this order. The Warden's opposing brief is due 120 days after Adcox's brief is filed, and Adcox's reply brief, if any, is due 90 days after the filing of the Warden's opposition brief.

IT IS SO ORDERED.


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