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John Michael Kirk v. Tom Felker

January 5, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Introduction and Summary

As is sometimes the case in federal habeas practice, the procedural battles which occur during litigation are often more lengthy/complex than adjudicating the substantive merits of the petition. This is such a case. Having moved past the statute of limitations issues to the merits, the undersigned moves to determining the two related claims in the petition: (1) the prosecution violated the Brady*fn1 rule concerning disclosure of potentially exculpatory/impeaching information when it tardily disclosed bogus bills of sale associated with the truck stolen by petitioner; (2) defense counsel was ineffective for arguing only for dismissal of the case as a sanction for the Brady violation, instead of including a request for exclusion of the late-disclosed material. For the reasons set forth herein, there was no Brady violation; even if one considers the prosecution's actions to be a violation of the Brady rule, no prejudice occurred because of such a violation; no ineffective assistance of counsel took place in that exclusion of the evidence would have surely been potentially detrimental to the defense.


None of the basic facts of the case are in dispute, although, of course, petitioner believes the result should have been opposite of what it was. Therefore, the facts set forth by the state Court of Appeal are adopted as the background facts.

A police officer responding to a complaint of a truck blocking an alleyway at 3:00 a.m. on the morning of July 3, 2004, saw defendant standing about 10 to 15 feet from the truck. Defendant asked the officer what was wrong. When the officer told him of the complaint, defendant responded, "I'll be more than happy to move it for you guys." The officer noticed the rear license plate was defaced, the front one was missing, and the vehicle had been hot wired and was reported stolen. On June 29, 2004, it had been reported missing from a gated worksite in West Sacramento. The officer arrested defendant. When the officer tried to start the truck by hot wiring it an hour later, it would not start. Defendant was charged with unlawful taking or driving of a vehicle, possession of a stolen vehicle, and five prior prison terms.

TRIAL Testimony at trial showed defendant had been at the gated worksite some time before the truck was taken. The general foreman of the company testified he saw defendant standing next to a dumpster within the fenced work yard some eight months prior to the theft. The foreman chased defendant, who climbed through a hole in a perimeter chain link fence. Defendant took a swing at the foreman and escaped on a bike, but not before the foreman saw that defendant had in his possession a distinctive keychain belonging to one of the company employees. Also, a West Sacramento police officer testified that he saw defendant inside the fenced area on company property about nine months before the date of the theft. The officer saw a bike resting next to a hole in the fence, and upon questioning, defendant admitted the bike belonged to him.

The foreman of the company, who owned the truck, testified that he recovered two handwritten notes of sale from the glove compartment of the stolen truck in July, after it was recovered. Each note purported to pass title to defendant from Mark Nelson in exchange for $1,200. One note was dated June 28, 2003, and the other, June 28, 2004. The foreman boxed up the notes of sale because the company was moving, and he did not inform the prosecutor of their existence until a week or so before the trial began in October 2004. He delivered the notes of sale to the prosecutor one week later. The prosecutor notified defense counsel of the notes of sale as soon as he heard of them, but did not give defense counsel copies until the day of trial. Defense counsel immediately moved to dismiss the action. The court denied the motion, finding that the prosecutor had produced the notes in a timely manner.

During opening argument, the prosecutor argued the notes of sale were fabricated by defendant to explain why he had possession of the truck. The defense theory was that they were fabricated-not by defendant but by the property owner-to implicate the defendant. Defense counsel pointed out that the police had thoroughly inspected the truck and had not found the notes of sale; the foreman had waited several months before notifying the prosecutor of this important evidence (at a time defendant was in jail); and no handwriting evidence was offered to show that defendant authored the notes of sale.

While deliberating, the jury requested a readback of the testimony concerning when the foreman turned the notes of sale over to the prosecutor. One hour later, the jury returned a guilty verdict on the count alleging possession of the stolen truck. The jury deadlocked on the unlawful taking or driving charge. In a bifurcated bench trial, the court found true that defendant had served five prior prison terms. The court sentenced defendant to a nine-year aggregate prison term.

People v. Kirk, 2006 WL 1283922 *1-2 (Cal. App. 2006).

Legal Standards Applicable to the Issues

Without indenting and inserting different quotation punctuation, and with bracketed material added, the undersigned quotes from the pertinent case, Cheny v. Washington, 614 F.3d 987, 993-995 (9th Cir. 2010):

Under § 2254(d)(1), a federal court must deny habeas relief with respect to any claim adjudicated on the merits in a state court proceeding unless the proceeding "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." The phrase "clearly established Federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta," of the Supreme Court's decisions "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). [Petitioner] does not argue that the relevant state court decision was "contrary to" any clearly established Supreme Court holding. FN3 Rather, [petitioner's] argument centers on the "unreasonable application" clause of § 2254(d)(1). "The 'unreasonable application' clause requires the state court decision to be more than incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Indeed, the Supreme Court has repeatedly instructed that "a federal habeas court may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Renico v. Lett, --- U.S. ----, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (internal quotation marks omitted); e.g., Waddington v. Sarausad, --- U.S. ----, 129 S.Ct. 823, 831, 172 L.Ed.2d 532 (2009); Middleton v. McNeil, 541 U.S. 433, 436, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (per curiam); Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, ...

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