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