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Gerald J. Payne v. J.C. Walker

September 15, 2011


The opinion of the court was delivered by: Milan D. Smith, Jr. United States Circuit Judge


Petitioner pro se Gerald Payne seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in California Superior Court, Sacramento County (the Superior Court). Payne was convicted, following a jury trial, on November 17, 2004, of two counts of second degree robbery in violation of Cal. Penal Code §§ 211, 212.5(c). Based on the jury finding Payne had five prior felony convictions, the Superior Court sentenced Payne to a term of 60 years to life imprisonment. Having exhausted his state court appeals and state collateral remedies, Payne filed this Petition claiming numerous alleged constitutional errors arose prior to, and during, his trial. For the following reasons, Payne's Petition is denied.


I. Arrest and State Court Proceedings

The events which led to Payne being arrested and charged with robbery are not disputed. During the afternoon of December 31, 2003, Payne, Kurt Andrillion, and Richard Chaney drove to North Highlands, California and parked their car near SAFE Credit Union. (Docket No. 39:

Lodged Doc. No. 2, at 17.) Using sunglasses and a hat purchased at a nearby Dollar Tree store to disguise his face, Payne entered the credit union, approached several tellers, and demanded $50 and $100 bills. (Docket No. 39: Lodged Doc. No. 4, at 3.) Payne received about $3000 in cash, as well as a bank tracking device, which he unknowingly placed in a yellow bag he was carrying. (Id. at 3--4.)

Several witnesses watched Payne exit the credit union and enter a small white car with two other men. (Id. at 3.) Payne, Andrillion, and Chaney drove to Andrillion's home, leaving the white car in the driveway. (Id. at 4.) Using the bank's tracking device's signal and information from witnesses, several Sacramento sheriff's deputies located the white car and surrounded Andrillion's house. (Id.) All three men were taken into custody. (Id.)

On January 5, 2004, Payne was arraigned for robbing the credit union. (Resp. Br. at 14.) On January 13, 2004, Payne appeared with appointed counsel from the public defender's office for an initial hearing before the Superior Court. (Lodged Doc. No. 10: Transcript of Hearing dated January 13, 2004, at 2.) At that hearing, Payne, who was cautioned repeatedly by the Superior Court not to interrupt the proceedings, indicated that he wished to make a motion pursuant to People v. Marsden, 465 P.2d 44 (Cal. 1970), to substitute his attorney as ineffective (a Marsden motion). (Lodged Doc. No. 10: Transcript of Hearing dated January 13, 2004, at 3--5.) After the Superior Court ordered Payne removed from the courtroom, the court denied the motion, stating "[t]here is no rational basis for a Marsden Motion at this time him having no knowledge whatsoever of the individual who is assigned to represent him." (Id. at 4.)

At a hearing on January 30, 2004, the Superior Court's minute entry reflects that Payne's bail was re-evaluated (being then set a $1 million) and that a hearing was set for February 2, 2004, "re: Pro Per status req." (Docket No. 39: Lodged Document No. 16: Clerk's Transcript on Appeal filed June 3, 2011 ("CT"), at 2--3.). On February 2, 2004, Payne's public defender was relieved by Superior Court Judge Thomas M. Cecil,*fn1 and Payne signed a form titled "Record of Faretta Warnings," which Judge Cecil endorsed under the statement: "The Court determined that the defendant has knowingly, intelligently and voluntarily decided to represent him/herself with full knowledge of the risks and dangers of doing so." (CT at 56.) The Superior Court's minute entry for the hearing also reflects this information:

FP: re pro per status

Faretta warnings given signed; PD rel'd, pro per status -- GTD (CT at 4.)

At hearing on April 27, 2004, Payne, acting pro per, appeared for status conference and raised several discovery issues with Judge Cecil. (Petition, Ex. A: Transcript of Hearing dated April 27, 2004 ("April 27 Hearing"), at 2--3.) Payne listed a number of concerns about his investigator and his access to evidence. (Id. at 3--6.) Toward the end of the hearing, the following colloquy between Payne and the Superior Court ensued:

Payne: One more, just the last issue right here, Your Honor. If possible, because of the impediments that I have been faced with, I would like if the Court would appoint me advisory counsel which would somewhat facilitate some of the issues that have been blackballed, such as receiving transcripts, basic transcripts of some of the proceedings that I have been going forth with in Court here. Advisory counsel would-it would alleviate a lot of different problems that's conflicting with Teresa Huff's office and the investigator. Not so much for advice or anything, I'm not trying to get any advantage. I would just like to be able to have a more better way of being able to convey what's needed and what you have, things of that nature with advisory counsel.

And just for the record, as you know there has been misconduct. As I said, I wrote you a letter to that regards and actually sent you documentation. You can verify that, there's no question about the misconduct. And that order up there as long as there's no interruption or tampering with the records at the Sheriff's Office, we will verify that, and I will be ready to proceed to trial, your Honor, and face my jury.

The Court: Pursuant to [§] 1368 the Court on its own motion expresses a doubt as to the competency of Mr. Payne. Dr. Nakagawa and Dr. Foster are appointed to examine the defendant pursuant to 1368 et. sec. [sic] of the Penal Code. In the event either of them is unavailable, Dr. Matussi [] is appointed as the alternate.

Criminal proceedings are suspended. The matter is continued to May 25th, 8:30 in this department. (April 27 Hearing, at 6--7.) Thereafter, Payne exited the courtroom. (Id. at 7.) In his absence, the Court the entered the following ex parte statement:

The Court: I need to make a record. The record should reflect that Mr. Payne sent me a long rambling letter accusing a variety of people of misconduct or working in cahoots with one another, cheating him out of his rights. I felt it was inappropriate to respond to this letter. I didn't respond to it. It's in the Court file.

The record should also reflect both the prosecution and Court have been put on notice by the panel that they have serious doubts about the competency about Mr. Payne based upon his allegations, repeated allegations concerning his investigations and his treatment. And based upon his performance today and his letter and the information from the panel, I concur. Mr. Payne is no longer, it appears, suitable to represent himself. We'll deal with his competency first.

(Id. at 7--8.)

On May 25, 2004, the Superior Court held a status conference at which Payne's competency was addressed. ((Petition, Ex. A: Transcript of Hearing dated May 25, 2004 ("May 25 Hearing"), at 2.) The Superior Court noted for the record that it had received two psychological evaluations of Payne. (Id. at 3.) The court asked the prosecution if it was prepared to submit the competency issues, and the State submitted. (Id.) The Court then stated: "As is the defendant, I presume. The defendant is found to be competent. Criminal proceedings are reinstated." (Id. at 3--4.) Payne then inquired as to why the proceedings had been suspended for the prior month. (Id. at 4--5.) The Superior Court told Payne that it had suspended proceedings based on his prior behavior in court. (Id. at 5.) Payne objected that while he had been unable to pursue his defense for a month, the State had been able to continue with its trial preparations. (Id. at 5.)

On November 9, 2004, the Sacramento County District Attorney filed an amended information against Payne charging him with two counts of second-degree robbery of the credit union. The amended information also alleged that Payne had six prior felony convictions. (Docket 39: Lodged Document No. 16: Clerk's Transcript on Appeal filed July 3, 2008 ("CT"), at 731-32.) Andrillion was charged with receiving stolen property. (Id.)

During a two-week joint jury trial against Payne and Andrillion, the State presented evidence in the form of testimony by Chaney that Payne had directed Andrillion to drive to the credit union. (Lodged Doc. No. 4, at 2--3.) Chaney denied knowing that Payne was planning to rob the credit union. (Id. at 2 n.3.) Chaney testified that when Payne returned to the white car, he declared, "[W]e just robbed a bank." (Id. at 3.) Chaney testified that Payne told him to search the bag for tracking devices, and that Andrillion drove to his house. (Id. at 4.) The State also presented evidence from officers at the scene that upon placing Payne in a patrol car, he gave an unsolicited statement that he was a "professional bank robber." (Id. at 4.) One sheriff's deputy recovered approximately $2,200 from Payne's pocket as well as the bank's tracking device. (Id. at 4.) A deputy also testified that upon placing Payne in the patrol car, he stated "robbery is so easy" and "I know I'm going down for this . . . I'm looking at fifty years minimum. . . ." (Id. at 4.)

Payne, proceeding pro per, attempted to present a duress defense. (Id. at 6.) He testified that Chaney and Andrillion threatened to kill him or his fiancee if he did not pay a debt he owed to Andrillion. (Id. at 6) Payne recounted that he had worked for Andrillion selling merchandise to retail stores. (Id. at 6.) Payne testified that although he was a good salesman, he began running up a debt with Andrillion by not paying him the full amount for the goods he was selling. (Id. at 6.) Payne disputed the amount he owed to Andrillion. (Id. at 6.) Chaney, who raised pit bulls, threatened harm to Payne if he did not repay Andrillion. (Id. at 6--7.) In December 2003, Chaney, who also apparently owned a weapon, told Payne that if he failed to repay Andrillion by New Year's Day, Payne or Payne's fiancee would be killed. (Id. at 7.) Payne paid Andrillion approximately $700 in December 2003, leaving an $800 balance due on the day of the robbery. (Id. at 7.)

According to Payne, on December 31, 2003, Andrillion called him with an "opportunity" to work off his debt. (Id. at 7.) When Andrillion came to pick him up, Payne was surprised to see Chaney in the car. According to Payne, he began to suspect Andrillion and Chaney were planning a bank robbery. (Id. at 7--8.) When they arrived at the credit union, Payne asked Andrillion if it was necessary to commit the robbery, and Andrillion replied, "either that or your life." (Id. at 8.) Thereafter, Payne took the money from the credit union because he was fearful of Andrillion. (Id. at 8.)

Payne's fiancee, Sandra Brown, testified that on the date of the robbery, Payne left their house with a small duffel bag and said he would be gone for a while. (Id. at 9.) Payne also told Brown that he was meeting Andrillion in order pay off his outstanding debt. (Docket No. 39: Lodged Doc. No. 22: Reporter's Transcript on Appeal ("RT") at 539.)

The jury convicted Payne on both robbery counts. (CT 899--901.) On January 3, 2005, the Superior Court sentenced Payne to 25 years to life on each count of robbery and imposed two consecutive 5-year terms for his prior serious felony convictions, thus yielding a ...

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