The opinion of the court was delivered by: Robert H. Whaley United States District Judge
Before the Court is Petitioner's First Amended Petition for Writ of Habeas Corpus, 28 U.S.C. Section 2254 (Ct. Rec. 16).
Petitioner is a state prisoner currently confined by the California Department of Corrections at Kern Valley State Prison, Delano, California, and is proceeding pro se. In Petitioner's first trial, the jury found Petitioner guilty of two counts of Possession of Access Cards with Intent to Defraud, but hung on First Degree Murder with special circumstances and Receiving Stolen Property. In his second trial, the jury found Petitioner guilty of First Degree Murder with Special Circumstances.*fn1 He was sentenced to life without parole plus seven years.
In his petition, Petitioner asserts eleven claims for relief:
(1) the evidence was insufficient to support the murder with the special circumstances count;
(2) denial of assistance of counsel when the trial judge failed to withdraw Petitioner's request to proceed pro se;
(3) denial of due process when the trial court declined to give a requested state jury instruction;
(4) denial of due process when the trial court failed to hear evidence in support of a motion for new trial;
(5) denial of due process by the trial court's exclusion of defense impeachment evidence;
(6) denial of due process by the trial court's restriction of defense witness testimony and instruction to jury to disregard part of it;
(7) trial court erred in using invalid prior convictions to enhance his sentence; and
(8) four claims of ineffective assistance of appellate counsel:
(a) failure to argue on appeal that the trial court erred in failing to conduct a full investigation into juror misconduct:
(b) failure to argue on appeal that the trial court abused its discretion in denying Petitioner's motion for mistrial after inadmissible evidence was revealed to the jury;
c) failure to argue on appeal that pre-trial counsel's breach of attorney-client confidentiality prejudiced Petitioner's right to a fair trial; and
d) failure to challenge on appeal the trial court's refusal to instruct the jury using the defense requested jury instructions.
In Petitioner's first trial, which was prosecuted as a capital case, the jury convicted him on Counts III and IV, Receiving an Access Card with Intent to Defraud, but hung on Count I, First Degree Murder with Special Circumstances, and Count II, Receiving Stolen Property. The trial court then found in a bifurcated proceeding that Petitioner had 11 prior felony convictions, including six for first degree robbery, three for first degree burglary, one for second degree burglary, and one for assault.
The State of California retried Defendant on Counts I and II, but it was not prosecuted as a capital case. Count II was dismissed, and the jury convicted Petitioner of first degree murder and found the burglary/murder special circumstance true, but the robbery/murder special circumstance not true.
Petitioner filed a direct appeal with the California Court of Appeal. He did not challenge his convictions on Counts III and IV. In his appeal, Petitioner asserted five claims: (1) insufficient evidence supported his conviction for murder;
(2) Judge Long committed evidentiary and instructional error as to the testimony of a jailhouse informant; (3) Judge Long denied Petitioner's constitutional right to counsel and his state-law right to advisory counsel; (4) Judge Long erroneously refused to consider new evidence offered on Petitioner's Motion for New Trial; and (5) Petitioner's prior convictions should have been stricken. The California Court of Appeal affirmed the judgment in an unpublished opinion and the petition for review was denied by the Supreme Court of California.
Petitioner then filed a Petition for Writ of Habeas Corpus in the Sacramento County Superior Court. In his Petition, Petitioner presented six claims: (1) his appellate counsel was ineffective in failing to claim on appeal that the trial court erred in denying Petitioner a full investigation into possible juror misconduct; (2) his appellate counsel was ineffective in failing to claim on appeal that the trial court erred in denying his motion for mistrial after "halfway house" was erroneously mentioned during trial before the jury; (3) his appellate counsel was ineffective in failing to claim on appeal that pretrial counsel for Petitioner had prejudicially undermined his right to effective assistance of counsel by divulging to the deputy district attorney that Petitioner intended to eventually act as his own attorney at trial; (4) his appellate counsel was ineffective in failing to claim on appeal that his diabetic condition prejudicially interfered with his ability to self-represent; (5) his appellate counsel was ineffective in failing to claim on appeal that on August 26, 2003, Petitioner had erroneously been denied sufficient funding for his requested ancillary services; and (6) his appellate counsel was ineffective in failing to claim on appeal that certain jury instructions for first degree special-circumstance murder that Petitioner proffered at the second trial was erroneously rejected by the trial court. The superior court concluded that Petitioner failed to established that had appellate counsel made these arguments, it would have resulted in a reversal of the judgment and denied the Petition.
Petitioner then filed a Petition for Writ of Habeas Corpus in the California Court of Appeal, Third Appellate District. In his Petition, Petitioner asserted the same grounds for relief as presented in his habeas petition to the Sacramento County Superior Court. The California Court of Appeal summarily denied the petition. On January 9, 2007, Petition filed a Petition for Writ of Habeas Corpus, asserting the same grounds for relief as presented in his previous habeas petitions. The California Supreme Court summarily denied his petition.
As the California Court of Appeal noted, there was no direct evidence that Petitioner killed Gary Call, but concluded that there was overwhelming direct evidence that Petitioner attempted to use Call's ATM card and credit card fraudulently. The direct evidence was a videotape catching Petitioner in the act shortly after Call was last seen alive. The Court of Appeal characterized Petitioner's attempts to explain his use of the cards as ludicrous and concluded that the evidence pointed to Petitioner as the killer. The Court of Appeal noted that if the jury disbelieved Petitioner's story, it could have reasonably inferred that Petitioner got the cards by stealing Call's wallet from his home, then killed him when confronted.
The following is the Court of Appeal's recitation of the evidence presented at trial with respect to Count 1:
On Monday, March 9, 1998, Call, a 62-year-old semi-retired architect, told business associate and friend Jay Halverson that he was going to leave work early to do some gardening and chores. Call made a deposit at the Bank of America branch at Broadway and 15th Street at 3:20 p.m. He then returned to his home at 2401 Montgomery Way, at the corner of 24th Street, in Curtis Park, where neighbors saw him gardening as late as 5:45 p.m., wearing sweat pants and a T-shirt or sweatshirt.
By the afternoon of Thursday, March 12, Halverson had not seen or heard from Call again. That evening Halverson went to Call's home with a neighbor to check on him. They saw Tuesday's newspaper inside the security door, though Call had the habit of bringing the paper in to work. No one answered the doorbell, but dogs were barking inside and the stereo system was on. Except for the door to the garage, all doors and windows were locked. ...