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Howie v. Subia

September 23, 2010

DENNIS RAY HOWIE, PETITIONER,
v.
RICHARD SUBIA, RESPONDENT.



The opinion of the court was delivered by: Fred Van Sickle Senior United States District Judge

ORDER GRANTING PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING

DENNIS RAY HOWIE was convicted in Amador County, California, Superior Court of the crime of knowingly possessing a controlled substance in a state prison. He is serving a prison term of 25 years to life. He has filed a petition for a writ of habeas corpus. He is represented by Ralph H. Goldsen. His custodian is represented by Justin P. Riley.

BACKGROUND

On October 12, 2000, Dennis Ray Howie was incarcerated in a prison in the State of California. His wife visited him. After the visit, Correctional Officer Edward Sauceda searched him. Based upon what Officer Sauceda observed, he suspected Mr. Howie had hidden contraband in his rectum. As a result, Officer Sauceda placed him in a cell; intending to keep him there until he had a bowel movement.

Mr. Howie asked to urinate. Officer Sauceda says that while Mr. Howie stood in front of a toilet, he retrieved a bindle of marijuana from his anus and attempted to flush the bindle down the drain. He was unsuccessful because a correctional officer had turned off the supply of water to the toilet. Officer Sauceda summoned assistance. A number of officers appeared. Several observed fecal material upon Mr. Howie's hands. Officer Sauceda was one. A Sergeant Franklin was a second. Officer David Collins was a third. Officer Collins escorted Mr. Howie to the infirmary, where he was examined by a medical technician. Officer Sauceda seized the bindle and reported the incident. On March 7, 2001, the Amador County district attorney filed a complaint in superior court charging Mr. Howie with knowingly possessing a controlled substance in a state prison. A judge appointed attorney Michael Rooney to represent Mr. Howie. However, Mr. Howie was not satisfied with Mr. Rooney. As a result, he asked for a new attorney. A judge appointed Joseph Scoleri. Mr. Howie was not satisfied with his second attorney. Nor was he satisfied with his third attorney, Helen Page, or his fourth attorney, Patrick Keene. The repeated changes of counsel slowed pre-trial proceedings. The changes may not have been the only circumstance that delayed trial, but they contributed significantly to the delay. Sixteen months after the district attorney filed the complaint, Mr. Howie's case still had not gone to trial. A judge determined the delay violated Mr. Howie's right to a speedy trial as guaranteed by state law. Consequently, on July 30, 2002, the judge dismissed the charge without prejudice. The district attorney refiled a complaint. Ms. Page was reappointed as Mr. Howie's attorney. The relationship was short-lived. She asked to be relieved as his attorney due to irreconcilable conflict. Mr. Howie agreed with her assessment of the relationship. A judge granted Ms. Page's motion. Not long thereafter, he appointed Allan Dollison to represent Mr. Howie. Mr. Dollison was his fifth attorney. Mr. Howie asked to act as co-counsel. A judge authorized him to do so. Mr. Howie filed a number of motions without assistance from Mr. Dollison. One was a request for review of the personnel files of three correctional officers. The Attorney General of the State of California opposed Mr. Howie's motion on the ground he had failed to establish good cause for the relief he sought. A judge denied the motion. Mr. Howie's case went to trial on December 16, 2002. The jury found him guilty and, in a separate proceeding, further found he had a number of prior convictions that counted as "strikes" for purposes of California's "three strikes law." The judge who presided over his trial sentenced him to prison for a term of 25 years to life. He appealed. The state Court of Appeal affirmed his conviction and sentence in a lengthy opinion. The state Supreme Court denied review. Mr. Howie filed habeas petitions with both the state Court of Appeal and the state Supreme Court. Both courts summarily denied his state habeas petitions. Thereafter, he filed a petition for a writ of habeas corpus in federal court. 28 U.S.C. § 2254. He challenges both his conviction and sentence. The Attorney General for the State of California has filed an answer on behalf of Mr. Howie's custodian, the respondent herein. The Attorney General admits Mr. Howie has exhausted his state remedies with respect to five federal claims.

RIGHT TO COUNSEL

A judge authorized Mr. Howie to act as Mr. Dollison's co-counsel.

However, the judge did not warn Mr. Howie that if he performed any of the functions of an attorney without Mr. Dollison's assistance, he would, in effect, be waiving his right to be represented by counsel with respect to those functions. Mr. Howie alleges he filed a number of motions without Mr. Dollison's assistance. Mr. Howie argues the issues he raised in those motions were critical to his defense. He claims the judge should have obtained a waiver of counsel before allowing him to raise those issues without Mr. Dollison's assistance, and that, by failing to obtain a waiver, the judge deprived him of his Sixth Amendment right to counsel. The state Court of Appeal ruled the judge did not violate the Sixth Amendment. Mr. Howie takes issue with the ruling. He is entitled to relief under 28 U.S.C. § 2254(d)(1) if the Court of Appeal's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." Thaler v. Haynes, --- U.S. ----, 130 S.Ct. 1171, 1173, --- L.Ed.2d ---- (2010) (per curiam) (hereinafter "Haynes"). "A legal principle is 'clearly established' within the meaning of [§ 2254(d)(1)] only when it is embodied in a holding of [the Supreme] Court." 130 S.Ct. at 1173. Haynes is instructive in that regard.

Anthony Haynes was charged in a Texas court with the crime of murder. Two judges presided over jury selection. One was present when the attorneys questioned prospective jurors individually. Another was present when the attorneys exercised peremptory challenges. The prosecutor struck an African-American juror. Mr. Haynes' attorney objected based upon Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The prosecutor justified his challenge based upon the juror's demeanor. The second judge overruled the objection despite the fact he had not been present when the attorneys individually questioned the jurors. Mr. Haynes was convicted. 130 S.Ct. at 1172. Texas courts affirmed his conviction and denied his state habeas petition. 130 S.Ct. at 1172-73. Mr. Haynes filed a petition for a writ of habeas corpus in federal court. 130 S.Ct. at 1173. The district judge denied the petition. He observed that the Supreme Court "had never held that the deference to state-court factual determinations that is mandated by the federal habeas statute is inapplicable when the judge ruling on a Batson objection did not observe the jury selection." 130 S.Ct. at 1173. The Fifth Circuit reversed. In doing so, it said, "an appellate court applying Batson arguably should find clear error when the record reflects that the trial court was not able to verify the aspect of the juror's demeanor upon which the prosecutor based his or her peremptory challenge." 130 S.Ct. at 1173 (internal citation omitted). The Supreme Court granted certiorari. The issue was "whether any decision of [the Supreme] Court 'clearly establishes' that a judge, in ruling on an objection to a peremptory challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), must reject a demeanor-based explanation for the challenge unless the judge personally observed and recalls the aspect of the prospective juror's demeanor on which the explanation is based." 130 S.Ct. at 1172. The Fifth Circuit had held Supreme Court precedent clearly established such a rule. The Fifth Circuit relied upon two cases. One was Batson itself. The Supreme Court rejected the Seventh Circuit's interpretation of Batson:

[W]here the explanation for a peremptory challenge is based on a prospective juror's demeanor, the judge should take into account, among other things, any observations of the juror that the judge was able to make during the voir dire.

But Batson plainly did not go further and hold that a demeanor-based explanation must be rejected if the judge did not observe or cannot recall the juror's demeanor.

Haynes, 130 S.Ct. at 1174. The other case upon which the Fifth Circuit relied was Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). Again, the Supreme Court rejected the Fifth Circuit's interpretation:

The prosecutor in that case [i.e., Snyder] asserted that he had exercised a peremptory challenge for two reasons, one of which was based on demeanor (i.e., that the juror had appeared to be nervous), and the trial judge overruled the Batson objection without explanation.... We concluded that the record refuted the explanation that was not based on demeanor and, in light of the particular circumstances of the case, we held that the peremptory challenge could not be sustained on the demeanor-based ground, which might not have figured in the trial judge's unexplained ruling.... Nothing in this analysis supports the blanket rule on which the decision below appears to rest.

Id. at 1174-75.

Unlike Haynes, this case does not involve peremptory challenges. Nevertheless, Haynes is instructive because it helps explain how a habeas court should determine whether federal law is clearly established for purposes of ยง 2254(d)(1). The habeas court's ...


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