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Marquis M. Davis v. and

September 28, 2012

MARQUIS M. DAVIS, PETITIONER,
v.
AND SCOTT MCEWEN, WARDEN, CALIFORNIA STATE PRISON, LANCASTER,*FN1 RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION ORDER [Re: Motion at Docket No. 37]

Marquis M. Davis, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Davis is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Lancaster. Respondent has answered, and Davis has replied.*fn2

I. BACKGROUND/PRIOR PROCEEDINGS

In November 2006 Davis pled guilty to attempted murder (Cal. Penal Code § 664/187) with an enhancement for the use of a firearm (Cal. Penal Code § 12022.53). On May 14, 2007, Davis filed a motion to withdraw his guilty plea on the ground that the victim had recanted his identification of Davis as the shooter. On June 21, 2007, after holding a hearing at which the victim testified, the Solano County Superior Court denied the motion and sentenced Davis to the agreed sentence of twenty-five years in prison. The California Court of Appeal, First Appellate District, affirmed the denial of Davis's motion, but granted a minor correction in the sentence, in an unpublished decision,*fn3 and the California Supreme Court denied review on January 28, 2009.

On August 21, 2009, Davis filed a petition for habeas relief in the Solano County Superior Court, which was summarily denied without opinion or citation to authority in an unreported decision. The California Supreme Court likewise summarily denied Davis's petition for habeas relief on June 9, 2010. While his petition for habeas relief was pending before the California Supreme Court, Davis timely filed his Petition for relief in this Court on December 8, 2009.

The California Court of Appeal summarized the proceedings below:

Sean WydermyerFN2 testified at the preliminary examination that on December 13, 2004, he went to a house in Vallejo after agreeing by cell phone to sell cocaine to [Davis]. Inside the house, [Davis] shot Wydermyer six times. Believing he was about to die, Wydermyer identified [Davis] to police as the shooter. [Davis] was charged by information with the willful, deliberate, and premeditated attempted murder of Wydermyer and that the offense involved the personal use of a firearm.

Things began to heat up in October 2006. [Davis] filed an in limine motion for a Kelly-Frye hearing "into the scientific validity of anticipated expert testimony with respect to the technical ability of cellular telephone companies to pinpoint the location of cell phones at times that calls are placed to or from them." [Davis] argued that discrediting the anticipated testimony would bolster his alibi defense and impeach Wydermyer's identification: "If Davis was in fact not in Vallejo, he could not have done the shooting. There are a number of reasons to distrust the victim's identification of Davis as the shooter: he is a drug dealer, and seems to have amassed plenty of enemies other than Davis who might have been the real assailants." The prosecution was also busy with its own motion, this one to amend the information to add an additional count of assault with a firearm (§ 245, subd. (a)(2)), with the same personal use enhancement.

On November 2, the court conducted a hearing at which it heard extensive argument on the motions and other pretrial matters. The court denied [Davis's] motion, but it left open the possibility of a trial hearing on the cell phone issue pursuant to Evidence Code section 402. The prosecution's motion to amend the information was in effect continued to November 6.

November 6, [Davis's] trial date, was a busy day for all concerned. The proceedings commenced with the court denying [Davis's] motion for a continuance. Concerning the prosecution's request to amend the information, defense counsel stated "I'm essentially estopped as a competent lawyer from opposing, because it does give the jury, in a case where I think we all agree the evidence is substantial against my client, the option of finding a lesser offense . . . ." However, counsel was uneasy at "a compromised verdict possibility."

The prosecutor responded: "If he's objecting, I'll just withdraw this thing. We'll just go on the attempted murder. I feel really confident about this case. I'll withdraw it." The court observed, "It's been withdrawn. Very good." But moments later, defense counsel told the court "I do want it. I do want it." The court then ordered the amended information "filed," and [Davis] entered pleas of not guilty to both counts and all enhancements.

Selection of a jury then began. Before selection was completed, [Davis] decided to accept a plea bargain offered by the prosecution, but only up to the point a jury was sworn. The deal was that [Davis] would plead guilty to the attempted murder charge-without the willful, deliberate, and premeditated clause-and be sentenced to the low term of five years. He would admit the enhancement to that count, and be sentenced to an additional 20 years.

[Davis] executed a change of plea form that included the waivers and admonitions required by Boykin v. Alabama (1969) 395 U.S. 238, In re Tahl (1969) 1 Cal.3d 122, and In re Yurko (1974) 10 Cal.3d 857. The court accepted [Davis's] change of plea, noting, "I have reviewed the waiver form. There does appear to be a knowing, intelligent and voluntary waiver of the various statutory and constitutional rights." Counsel for both sides agreed that there was "a factual basis [for the plea] on the preliminary hearing transcript." The assault count and remaining enhancement allegations were dismissed.

Sentencing was initially set for November 30, 2006, but was repeatedly continued, until May 24, 2007.

On May 14, [Davis] filed a motion requesting leave to withdraw his guilty plea on the ground that Wydermyer had recanted his identification of [Davis] as his assailant. The motion was supported with a declaration by Wydermyer in which he stated: "Several months ago, I learned that Davis had pleaded guilty to the charge of having shot me . . . . I have determined that I may have been mistaken in saying, and later in testifying, that Davis shot me. I am now uncertain of the truth of my statements in this regard. I myself have a doubt as to whether Davis shot me. I would be prepared to testify to this doubt to any Court or any jury should Davis be permitted to withdraw his guilty plea and go to trial."

The prosecution filed opposition to the motion, arguing that Wydermyer's change of mind did not constitute good cause for allowing [Davis] to withdraw his plea.

On May 24, [Davis's] motion was the subject of an extensive hearing. After considerable discussion about the development of the case and the timing and circumstances of defense counsel learning of Wydermyer's change of mind, Wydermyer took the stand. He was initially examined briefly by the court and then by defense counsel about his declaration. Wydermyer testified that it was he who approached [Davis's] counsel. He was not threatened to change his mind.

The court interjected to ask: "I'm looking at your declaration. Among other things, you say that 'I have determined that I may have been mistaken in saying and later testifying that Mr. Davis shot me.' [¶] . . . [¶] You don't know if you were mistaken, but you may have been mistaken; is that it?" Wydermyer replied, "Yeah." When defense counsel resumed questioning. Wydermyer conceded that [Davis] was in the house at the time of the shooting, but Wydermyer was not sure he was the actual shooter.

On cross-examination by the prosecutor, Wydermyer testified that he had previously made three positive identifications of [Davis] as the man who shot him. The gist of his changed position was that he knew there were two people in the house-[Davis] and another man-at the time he was shot. Wydermyer was certain that the other man did not shoot him. But Wydermyer was now allowing for the possibility of a third man, who might have been the shooter:

"Q. Looking at your transcript of what happened at the prelim, do you remember testifying that the person who shot you just before that maybe just walked into a bathroom?

"A. Yeah. "Q. Okay. And the person who walked into the bathroom just before you got shot was the defendant, right, Mr. Davis, right?

"A. Yes. "Q. So you know that and you are sure of that, right? "A. Yes. "Q. Did you ever see anybody in the house go into that bathroom? "A. No, but I can't say there wasn't no one already in there. I didn't thoroughly search anything." As Wydermyer put it, "I can't say it was him or not. I really didn't look at his face. I just went by who I seen went in the bathroom." But he did not actually see a third person.

On redirect, Wydermyer testified that he was not repudiating what he previously said, but "I have a terrible memory . . . after the incident," and what he really recalls is that "I was just looking at a weapon. That's all I was looking at."

After defense counsel stated "I don't want to call another witness," the court heard argument on the motion. The court then ruled as follows: "Well, Penal Code Section [1018] authorizes motions to withdraw guilty pleas, provides basically that a trial court may grant such a motion for a good cause shown, and as a general rule, a plea of guilty may be withdrawn for mistake, ignorance or inadvertence or any other factor overreaching the defendant's free and clear judgment, meaning at the time he entered the plea. The defendant has the burden of proving grounds for withdrawal of the guilty plea by clear and convincing evidence . . . .

"I think the general rule . . . is that cases involving a victim's recantation, our appellate courts have cautioned repeatedly that a witness's offer to retract sworn testimony should be viewed with suspicion and given little credence.

"And I listened to this gentleman, and I think that Mr. Wydermyer basically has a little bit of buyer's remorse. After all, what he says is the same in the declaration that [defense counsel] prepared and he signed, he basically said the same thing here ten minutes ago, that is, that he may have been ...


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