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Richard J. Vieira v. Kevin Chappell

April 12, 2013

RICHARD J. VIEIRA
PETITIONER,
v.
KEVIN CHAPPELL, AS ACTING WARDEN OF SAN
QUENTIN STATE PRISON,
RESPONDENT.



The opinion of the court was delivered by: Anthony W. Ishii United States District Judge

DEATH PENALTY CASE ) ORDER DENYING MOTION TO ) DISQUALIFY PRESIDING JUDGE, DISMISSING PRO SE PETITION,DIRECTING CLERK TO ENTER ) JUDGMENT, AND DENYING A ) CERTIFICATE OF APPEALABILITY

On February 20, 2013, Petitioner Richard J. Vieira ("Vieira") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3) and leave to proceed in forma pauperis in the United States District Court for the Northern District of California. Two days later, the Northern District Court, by the Honorable Charles R. Breyer, transferred the case to the Eastern District of California, Fresno Division. Thereafter, on March 8, 2013, Vieira filed a motion for further evidentiary development (doc. 6) and a motion to disqualify the undersigned from hearing his case (doc. 7).*fn1

I. Overview

Vieira is a condemned inmate at California State Prison, San Quentin. His chief complaint in the present proceedings is that California Supreme Court death penalty litigation procedures deprive him of merits review of his underlying substantive claims challenging his conviction and sentence. He believes that because the California Supreme Court deemed the majority of his state habeas claims defaulted on untimely and other procedural grounds, his claims will be similarly barred in federal court.

Vieira is mistaken. This Court has made clear, on more than one occasion, that habeas claims presented in death penalty cases under 28 U.S.C. § 2254, including Vieira's, will be considered on the merits before the matter of procedural default is considered.

II. Procedural Background

Vieira initially commenced federal habeas proceedings regarding his conviction and sentence on November 22, 2005 by filing an application for stay of execution and appointment of counsel, plus a motion to proceed in forma pauperis. These requests were filed by the Court under case number 1:05-cv-1492 (hereafter "Federal Habeas Action"). In due time, counsel were appointed to represent Vieira and investigation of his federal claims culminated with the filing of a timely, comprehensive federal petition, on October 29, 2006, alleging 46 claims, plus numerous subclaims. Two days later, Vieira (through counsel) filed a comprehensive state habeas petition in the California Supreme Court, raising the same federal constitutional claims. This state petition was Vieira's first post-conviction pleading filed in state court. On November 6, 2006, Vieira (through counsel), filed a motion to hold the Federal Habeas Action in abeyance while his federal claims were exhausted in state court. The motion was granted on January 4, 2007 over the objections of Respondent Warden of California State Prison at San Quentin (the "Warden"). The California Supreme Court denied Vieira's state petition on June 24, 2009 on the merits and for various procedural reasons, including untimeliness, that the claims already had been rejected on direct appeal, that the claims should have been raised on direct appeal in the first instance, that one claim should have been raised before the state trial court, and that one claim was premature.

Before the California Supreme Court entered its June 24, 2009 order, Vieira began submitting documents pro se for the Court's consideration beginning on March 10, 2009 with a motion to show cause why the Court should not excuse exhaustion and decide the claims presented in the Federal Habeas Action on the merits. The Court refused to bypass the exhaustion process and denied Vieira's pro se motion on April 22, 2009. A motion for reconsideration followed which the Court also denied on May 21, 2009.

Once the proceedings were back in federal court, the Court ordered the Warden to file an answer, which after an extension of time, he did on December 9, 2009. In the answer, the Warden largely relied on the concept of procedural default, which he asked the Court to litigate first. Before addressing this request, the Warden agreed that the claims in the petition filed in the Federal Habeas Action were fully exhausted. On January 14, 2010, the Court entered an order informing the parties that the Court would address the merits of the claims in the petition before addressing the Warden's claims of procedural default.

Briefs submitted by the parties addressing the merits of the petition were filed on September 1, 2010 (Vieira, through counsel), July 21, 2011 (the Warden), and January 9, 2012 (Vieira). On January 23, 2012, Vieira, through counsel, filed a motion for further evidentiary development, that is an evidentiary hearing as to nine claims, and a request to expand the record as to one additional claim. The motion is supported by many volumes of exhibits. The Warden filed his opposition brief to Vieira's motion for further evidentiary development on March 15, 2012, and Vieira's reply was filed on April 12, 2012. That motion is pending and has been submitted for decision by the Court. The Court will address the merits of the claims presented in the Federal Habeas Action.

From the time state exhaustion proceedings were complete on June 24, 2009, Vieira has continued to submit pro se documents for filing. Most of these submission have been returned because they sought a ruling on the merits of his claims and he is represented by counsel. On November 21, 2011, however, the Court accepted a submission for filing, under seal, in which Vieira declared a conflict of interest with his appointed attorneys. On February 21, 2012, after conferring with the attorney selection board for the Eastern District of California, the Court appointed independent counsel to assist the Court in evaluating Vieira's assertion of a conflict of interest. Specifically, independent counsel was directed to ascertain the nature of Vieira's complaints about the legal representation he received and report that information to the Court confidentially, without disclosing attorney client communications. On May 3, 2012, independent counsel filed his report to which he appended a declaration over Vieira's signature dated April 30, 2012. This report was filed confidentially, for the Court's use only.

The Court did not find anything in independent counsel's report which amount to a legally cognizable conflict of interest with Vieira's appointed attorneys. Accordingly, on May 25, 2012, the Court discharged independent counsel because his appointment had fulfilled the Court's objectives. In a separate order on the same date, the Court addressed a number of Vieira's filings.

From these filings, the Court is aware Vieira believes the California procedure for adjudicating death penalty claims results in a suspension of the writ, specifically because of excessive delay and procedural rulings. He supports challenges to the California system by reference to writings published by Ninth Circuit Judge Arthur L. Alarcon. The Court also is aware that Vieira is unhappy with his appointed attorneys because of their apparent acquiescence in the alleged illegal conduct of the California State Court system and for not advancing his arguments. Finally, the Court is aware that Vieira's challenges to the California procedures is not isolated, but rather, part of an apparent movement within the condemned prison population at San Quentin State Prison initiated and encouraged by fellow-condemned inmate Theodore Shove.

Concurrently with the Court's evaluation of Vieira's asserted conflict of interest, the Court also received and evaluated a pro se civil rights complaint over Vieira's signature and filed under case number 1:12-cv-00044. In the civil rights complaint, Vieira alleged wrongs committed against him by the California Supreme Court similar to those summarized above. The civil rights action was opened on January 9, 2012 and terminated on September 17, 2012 when the Court adopted the Findings and Recommendations of the magistrate judge for dismissal of his action. The Court further addressed and denied Vieira's motion for reconsideration on October 26, 2012. When Vieira appealed this ruling to the Ninth Circuit, the appellate court denied in forma pauperis status and ordered him to pay the docketing and filing fees. Having not done so, the Ninth Circuit dismissed his appeal on April 3, 2013.

III. Review of the Petition

Vieira's petition in the present case alleges that under 28 U.S.C. § 2241(c)(3) that he is in custody in violation of the "Constitution or Laws or Treaties of the United States." His specific claims demonstrating this violation include some claims pleaded in his petition in the Federal Habeas Action (noted below), and others previously alleged in his pro se submissions. As discernible from his pleading he claims as follows:

1. His trial attorney refused to have second counsel appointed to represent him (alleged in the Federal Habeas Action).

2. His trial attorney rushed Vieira's case to trial separately and before any co-defendants were tried, without conducting adequate investigation and discovery (alleged in the Federal Habeas Action).

3. The trial prosecutor withheld exculpatory evidence (alleged in the Federal Habeas Action).

4. After the conviction and sentence were entered and Vieira's automatic appeal was pending before the California Supreme Court, the state court refused to accept his pro se submission challenging his appointed appellate counsel Richard L. Rubin. As a result, Vieira claims his right to participate in his own appeal was barred by the California Supreme Court.

5. After the conviction and sentence were affirmed by the California Supreme Court, Mr. Rubin, and second state counsel, Wesley A. Van Winkle,*fn2 filed a petition for certiorari with the United States Supreme Court, but no violations of federal law or the United States Constitution were presented in that petition because no habeas ...


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