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Anderson v. Gipson

United States District Court, E.D. California

March 19, 2014

CONNIE GIPSON, Respondent.


KENDALL J. NEWMAN, Magistrate Judge.


Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 conviction for inflicting injury on a cohabitant (Cal. Penal Code § 273.5(a)), assault by means of force likely to inflict great bodily injury (Cal. Penal Code § 245(a)(1)), vandalism (Cal. Penal Code § 594(a)), and four prior convictions. The trial court declared a mistrial as to the charge of resisting a peace officer (Cal. Penal Code § 69) after the jury could not reach a verdict. Pursuant to the Three Strikes Law, petitioner is serving a sentence of 54 years to life.

Petitioner raises the following claims: 1) the trial court erred in failing to hold a competency hearing; 2) the trial court erred in failing to revoke petitioner's pro per status; 3) the trial court erred in permitting petitioner to appear at trial visibly shackled; 4) petitioner was improperly subject to multiple punishment; 5) ineffective assistance of counsel (2 claims); 6) the trial court erred in failing to grant petitioner a continuance after granting his motion to represent himself; 7) the trial court erred when it denied petitioner's motion for a mistrial; and 8) the prosecutor interfered with a defense witness.

After carefully reviewing the record, the undersigned recommends that the petition be denied for the reasons stated herein.

Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire , 502 U.S. 62, 67-68 (1991); Park v. California , 202 F.3d 1146, 1149 (9th Cir. 2000).

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer , 537 U.S. 3, 7 (2002) (citing Williams v. Taylor , 529 U.S. 362, 405-06 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams , 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade , 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction' that the state court was erroneous.'") (internal citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter , 131 S.Ct. 770, 786 (2011).

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza , 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington , 131 S.Ct. at 784-85. That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker , 501 U.S. 797, 803 (1991)).

"When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits - but that presumption can in some limited circumstances be rebutted." Johnson v. Williams , 133 S.Ct. 1088, 1096 (Feb. 20, 2013). "When the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to" de novo review of the claim. Id., at 1097.

Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson , 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington , 131 S.Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.

Factual Background

The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein:

Facts and Proceedings
The facts underlying the convictions are largely irrelevant to the issues on appeal, but we include them for the purpose of showing the absence of any possible prejudice. In a nutshell, defendant and the victim had been living together on and off since 2004, but in February 2007 he was not living with her. They attended the wake of defendant's nephew, which left him extremely distraught. The victim drove defendant and his brother to a supermarket near her home to drop them off before going to tend to her ill mother. The brother had gone into the store when defendant and the victim began to quarrel over her failure to join them for a drink. He hit her behind her right ear and grabbed the car keys, heading for the store. As she followed him toward the store, he struck her again, knocking her down.
Their quarrel continued inside the store. The victim requested the use of the manager's phone to call 911. After she made the call, defendant tried to grab the phone out of her hand. He put his arm around her neck and dragged her backward about 15 feet before throwing her to the ground.
The victim began to drive off, but defendant was able to get back in the car before she left the parking lot. She drove to the nearby home of defendant's grandmother where the police intercepted them. Defendant, smelling strongly of alcohol, told the police he could not go to jail because his nephew had just died. When the police put him into the patrol car, he kicked out a window. (In light of the mistrial, we omit a description of defendant's struggles with the police as they took him into custody.) The victim had a two-by one-inch "painful" contusion behind the ear, bruises, and a lump on her head.
Defendant testified. He claimed he was not cohabiting with the victim at the time of the assaults, but admitted being an intermittent bed companion. He accused the victim of starting the fight in the car by scratching his neck. He grabbed her in an unsuccessful attempt to keep her from getting out of the car, then followed her and pushed her to the ground because he was angry about the scratch. When he followed her into the store, he pushed her away from the counter to keep her from calling the police. He otherwise did not kick or strike her. When cross-examined about the surveillance video from the supermarket, defendant admitted the video did not show the victim attacking defendant in the car; it showed him on top of her in the car drawing his hand back several times; it showed him standing above her as she lay on the ground outside the market, moving his arms and legs; and it showed him swinging his arms as he stood over her in the store after shoving her to the ground.

(2009 WL 3809633 at *1-2 (2009).)

Failure to Hold Competency Hearing

State Court Opinion

The California Court of Appeal was the last state court to issue a reasoned decision addressing this claim. Accordingly, the undersigned considers whether the denial of this claim by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority.

The California Court of Appeal denied this claim for the reasons stated herein:

Defendant's Competence to Stand Trial
In order to be subject to trial, due process requires a defendant to have a rational understanding of the nature of the proceedings against him and the ability to consult effectively with counsel in preparing the defense. ( Indiana v. Edwards (2008) 554 U.S. ____ [171 L.Ed.2d 345 , 352] (Edwards).) A trial court must suspend proceedings and conduct a competency hearing whenever there is "substantial evidence of incompetence, that is, evidence that raises a reasonable... doubt" as to a defendant's competence to stand trial. ( People v. Rogers (2006) 39 Cal.4th 826 , 847.) Given a trial court's ability to observe a defendant, the court is entitled to deference in deciding whether the circumstances called for a competency hearing, but the failure to hold a hearing in the presence of substantial evidence of incompetence requires reversal of the judgment. (Ibid.) In the same vein, the failure of defense counsel to seek a competency hearing is not determinative but is significant. (Id. at p. 848.) Suicide attempts or ideation " in combination with other factors " can be substantial evidence of incompetence. (Ibid., italics added.) Presenting a list of facts on appeal unrelated to a defendant's understanding of the proceedings or ability to assist counsel is inadequate; "a defendant must exhibit more than bizarre, paranoid behavior [or] strange words...." ( People v. Ramos (2004) 34 Cal.4th 494 , 508.)
Throughout the proceedings, defendant demonstrated extreme emotional strain from the prospect of the lengthy indeterminate life sentence he faced. In the original trial proceedings in October 2007, counsel indicated at the outset that relations with his client were rocky but repairable. On the following day, defendant refused to come to court. Defense counsel reported that "I don't think I can raise things to the level of a doubt to his competency. But I do have some concerns" about defendant not presently taking the anti-depressants previously prescribed for him while in jail, because he was somewhat suicidal. The prosecutor noted there were indications in the jail record of previous suicide attempts, though not whether they were feigned or not. Defense counsel thought defendant was preoccupied and that preoccupation was interfering in their interaction, which might raise a doubt of competence if it worsened. For this reason, he asked for a short continuance to get an evaluation of defendant from professionals with whom he was familiar and who could work quickly. The court and the prosecutor both adverted to defendant's "difficult" personality and high stress level, and the need to avoid giving him any indication that being difficult would result in any delay of the proceedings.
However, defendant appeared in court in the afternoon in jail attire. He asserted that he did not want to be there, that he was not mentally prepared, and he did not understand what was happening. He said that he had stopped taking his medication, and thought the strain of the proceedings might leave him unable to be present throughout them. He also had been having trouble eating and sleeping. The court observed that defendant had become emotional in the discussion of whether the court might strike one of his recidivist allegations, and believed that defendant was simply experiencing the ordinary stress of facing trial (rather than facing an incipient mental breakdown). It therefore intended to proceed with voir dire, and stated "[f]or the record, there is nothing that I can find from my interaction and my observation of Mr. Anderson that would in any[ ]way... indicate that he doesn't know what was going on... either today or in the prior proceedings...." As related more fully in part III, after the court then stated that it could not find any basis for restraints, defendant insisted on wearing them during the beginning of voir dire.
On the next trial date, the court announced that it was continuing the proceedings in order to evaluate defendant because he had attempted suicide over the weekend. With the concurrence of defense counsel, the court dismissed the jury panel for good cause.
The court granted a number of additional continuances. Defense counsel informed the court in camera at one of these hearings that he intended to have his outside experts conduct a psychological evaluation of defendant, and he would take whatever course the confidential report indicated.
The case eventually came on for trial in a new department. Defendant requested a substitution of appointed counsel. After hearing lengthy complaints about inadequate investigation of the facts (and inadequacy of his previous representation) and inadequate contact, and the admission from defense counsel of a heated exchange between them on the first day of the original trial regarding defense counsel's commitment to the case, the court denied the motion. Defendant then said that he wanted to represent himself.
Back on the record, the court told him that the case was proceeding to trial with or without defense counsel. Defendant again asserted his intent to waive his right to counsel. He explained that he felt the outcome of the trial was inevitable and he would rather reach that result on his own than with someone else representing him, and asserted the unfairness of going to prison for life and losing everything else important to him for "push[ing] my girl down, " whom he had not intended to hurt. When the court could not get defendant to express his understanding that self-representation precluded an appeal based on his inadequate performance at trial, it refused to accept the waiver before going on to other matters (querying in the course of discussion whether there would be a need to revisit these other matters if defendant waived his right to counsel). Following the lunch recess, the court told defendant it would accept his waiver notwithstanding his refusal to acknowledge that he could not raise the incompetence of his own trial performance on appeal.
Defendant did not participate meaningfully in the voir dire and selection of jurors on the following day. At the start of trial on the second day, the court let defendant know that defense counsel was standing by; defendant did not reply and sat with his head hanging down until the court called the first witness to the stand, at which point he blurted out that he felt "overwhelmed" and asked to be excused. When it came time for him to cross-examine a police officer who responded to the victim's 911 call, he simply asked whether the officer knew that he was facing a life term, and then admitted he did not know how to cross-examine (at which point the court excused the witness). The court called a recess.
Defendant confessed he was legally inadequate, and was feeling an extreme amount of stress. The court again reminded him of the availability of counsel. Although neither the court nor the prosecutor believed defendant was entitled to a continuance, the court recessed the trial until the following Monday to allow defendant time for whatever preparation he could undertake.
When the trial reconvened, defendant continued to complain that his inability to try the case resulted in an unfair trial. He was silent during the examination of a witness testifying about the damage to the police vehicle and did not respond when asked if he wanted to cross-examine. During the direct examination of the victim, he repeatedly interrupted the questioning. (As defendant does not cite to more than one of these instances in his appellate brief, we will not detail them.) According to defendant's own summary of his cross-examination of the victim, "he called her names and pleaded with her."
When the court called the noon recess, defendant had an emotional outburst (apparently directed at the prosecutor) and asked to rescind his waiver of counsel. He also demanded a mistrial. After the recess, defendant apologized for his behavior and again requested a mistrial. At the conclusion of the afternoon's proceedings, the court granted defendant's request to revoke his waiver of counsel and reappointed defense counsel.
Defendant sets forth the following as constituting the substantial evidence of his incompetence to stand trial: the unquestioned evidence of his emotional strain in facing an all-but-inevitable life term without parole (being 42 at the time of sentencing to a 50-year minimum indeterminate sentence), leading to his genuine suicide attempt on the eve of the initial proceedings in this matter; his failure to take any action in his own defense when proceeding in propria persona at the renewed proceedings during voir dire and the examination of the first two police witnesses; and his emotional outbursts during the prosecutor's examination of the victim and his own cross-examination. He acknowledges his trial counsel's failure to express a doubt, but simply relies on the fact that this is not determinative.
Defendant's failure to take action in his own defense at trial does not show anything more than the expected reaction of an unprepared layperson thrust into the complexities of the ill-advised role of self-representation. His suicide attempt or attempts are not sufficient of themselves to give substantial evidence of an inability to understand the proceedings or assist trial counsel meaningfully, as we have noted above. Defendant's emotional distress, far from being substantial evidence of his incompetence, demonstrates he knew far too well what was at stake, including his accurate assessment of the likelihood of his convictions. His outrage at the victim is also rational. While trial counsel at one point was concerned that the level of defendant's emotional preoccupation with the outcome might make him unable to interact meaningfully with counsel, he expressed the intention to seek a confidential evaluation of defendant's mental condition and thereafter did not say anything more on the subject. We will not speculate on appeal either that counsel did not carry out his expressed intention or that he disregarded evidence in this evaluation of incompetence. While this absence of doubt on the part of counsel is not determinative, nothing else in the record suggests a lapse on counsel's part, and the two trial judges were equally convinced that nothing they saw in court gave any doubt of defendant's understanding of the proceedings or of his ability to assist counsel. We therefore reject this claim.

(Id. at *2-4.).

Summary of Factual Background to Competency Claim

The California Court of Appeal's description of the facts relevant to this claim is accurate. The undersigned herein describes the relevant background in more detail with citation to the record.

The first mention in the record of any issue concerning petitioner's mental state is on the morning of Thursday October 18, 2007. (Reporter's Transcript ("RT") at 34.) On that date, when jury selection was to begin, petitioner did not appear in court. (Id.) The trial judge stated that he was informed by the bailiff that petitioner refused to be transported from the jail to court that morning. (Id.) During a break, petitioner's counsel went to the jail to talk to petitioner then reported back to the court. (Id.) Counsel stated, "Well, I can say that I don't think I can raise things to the level of a doubt to his competency. But I do have some concerns. I do know I can - I'm authorized to disclose that I do know that he has been while in the County Jail on anti-depressant medication in the past." (Id. at 35.) Counsel went on to state that petitioner was not taking the medication and that he would like to have petitioner evaluated by the outpatient ward at the jail. (Id.) Counsel stated that he was also informed that petitioner had made suicide attempts when he first got into county jail, but he did not think that he was presently suicidal. (Id.)

The prosecutor then indicated that there was some question regarding whether petitioner's past suicide attempts were sincere. (Id. at 36.) Petitioner's counsel stated that petitioner was "preoccupied" and "I don't think it's at this point would rise to the level of a doubt but it's a focused preoccupation that clearly stands in the way of our interaction." (Id.) Counsel requested a continuance so that he could have petitioner's mental status evaluated. (Id.)

The trial judge commented that petitioner seemed under stress:

I think there is a certain level of stress that's apparent to myself anyway when he comes to court and it is obviously because that - part of that stress level is being driven by the amount of time that he faces.

(Id. at 41.)

The trial judge decided to recall the case in the afternoon to see if petitioner would come to court. (Id. at 44.)

In the afternoon, petitioner appeared with counsel. (Id. at 46.) Petitioner told the court that he was not mentally prepared for the trial and he was not ready for trial. (Id. at 48-49.) Petitioner later stated that he felt like he was having some type of breakdown. (Id. at 55.) Petitioner also told the court that he had, on his own, stopped taking his medication. (Id.)

Petitioner's counsel asked the court to continue the case based on petitioner's mental status so that he could have petitioner evaluated by jail services and his own experts. (Id. at 52.)

After further discussion with petitioner, the trial judge stated,

For the record, there is nothing that I can find from my interaction and my observation of Mr. Anderson that would in any way - that would indicate that he doesn't know what's going on in the proceedings either today or in the prior proceedings that we have held during the course of the trial.

(Id. at 60)

The trial judge ordered that the case would resume on Monday. (Id. at 70.)

On Monday October 22, 2007, petitioner did not appear in court. (Id. at 71.) The trial judge stated on the record that petitioner tried to hang himself on Saturday afternoon. (Id. at 71.) The discussion of this incident in the transcript indicates that the trial court thought that petitioner's suicide attempt was sincere. (Id. at 72-73.) The trial judge set a status conference for October 24, 2007. (Id. at 77.)

On October 24, 2007, petitioner did not appear in court. (Id. at 78.) The trial judge stated that petitioner was still under psychological evaluation. (Id.) The trial judge continued the case to the following day. (Id. at 80.)

On October 25, 2007, petitioner appeared in court. (Id. at 81.) The trial judge told petitioner that he had to discharge the jury panel that was going to be used to select petitioner's jury. (Id.) The trial judge also noted that petitioner was still under psychological/psychiatric evaluation at the jail. (Id. at 82.) The trial judge continued the trial to November 13, 2007. (Id.) At the October 25, 2007 hearing, petitioner's counsel told the court that he would like to put on the record "ex parte the things that have happened so the record is clear." (Id. at 83.) Counsel stated that to disclose these things in open court would violate attorney-client confidentiality. (Id.) Pages 84 and 85 of the record, containing this information, are sealed. (Id.) These sealed pages are not in the court record.

Petitioner appeared in court on November 13, 2007. (Id. at 86.) Petitioner's counsel could not be present, so the case was continued to the following day. (Id.) Petitioner appeared in court on November 14, 2007. (Id. at 87.) The trial judge granted the request of petitioner's counsel to reset the trial to November 19, 2007. (Id.)

The trial was continued several times to February 5, 2008. (Court Transcript ("CT") at 14-15.) It appears that a new trial judge was assigned to the case on this date. On that morning, petitioner made a Marsden[1] motion. (RT at 89-102.) The transcript from this hearing is sealed.

Following the denial of the Marsden motion, petitioner made a Faretta[2] motion. (Id. at 105.) The trial judge discussed with petitioner whether he understood the consequences of self-representation. (Id. at 107-18.) During this discussion, petitioner made several lengthy statements indicating his understanding of the proceedings. The undersigned quotes one of these statements below made after the trial judge advised petitioner that it was seldom a wise decision to represent yourself and that petitioner may have some anger toward his lawyer:

No. I'm not angry at [counsel]. I just don't believe - some lawyers are just not for you. He is not - he says he doesn't have my best interest at heart. He says he doesn't, and I don't trust him. There's just too many things that he said to me like last night. He said - he said that he - that he mentioned the same question that I asked him about in the preliminary hearing. He mentioned to me. I asked him right there. He told me right there. He lied to me. So how can I go to trial fighting for my life with somebody like that?

(Id. at 111-12.)

The trial judge delayed ruling on petitioner's Faretta motion until counsel researched the issue of whether petitioner could argue, on appeal, that he was not competent to represent himself. (Id. at 126.) During the February 5, 2008 afternoon session, the trial judge advised petitioner that if he represented himself, in all probability he would not be able to argue, on appeal, that he was not competent to represent himself. (Id. at 128.) Petitioner indicated that he still wanted to represent himself. (Id.) The trial judge then granted the Faretta motion. ( Id. at 129-30.)

After granting the Faretta motion, the trial judge discussed pretrial matters with petitioner and the prosecutor. ( Id. at 130-57.) Petitioner's comments indicate that he understood what was being discussed. For example, petitioner discussed the circumstances of one of his prior convictions. ( Id. at 136-37.) Petitioner also objected and argued when the prosecutor made a motion that the jury not be told that this was a three strikes case. ( Id. at 141-42.) Petitioner also requested the jury be instructed with a lesser included offense for inflicting injury on a cohabitant. ( Id. at 142-43.) The trial judge also denied petitioner's request to continue the trial. ( Id. at 148-49.)

On February 6, 2008, the trial judge denied petitioner's renewed motion to continue the trial. ( Id. at 159-60.) The trial judge then explained the voir dire process to petitioner. ( Id. at 161-66.) While petitioner's participation in the voir dire was limited, the transcript does not indicate any inappropriate behavior by petitioner. (See Voir Dire Transcript, filed May 3, 2013.) Petitioner appeared to understand the nature of the proceedings.

Following jury selection, the trial began on February 7, 2008. After the prosecutor informed the trial judge of the name of his first witness, petitioner stated, "I feel overwhelmed. I can't handle it. I'd like to be excused." (RT at 171.) The trial judge responded, "Mr. Anderson, we have talked about this at length. I've indicated to you that [former trial counsel] is available to assist you, but we need to know that. Go ahead now, [Mr. Prosecutor]." (Id.

During the trial, petitioner objected to the proceedings on occasion. For example, when the trial judge asked petitioner if he wanted to review a photograph being introduced as an exhibit by the prosecutor, petitioner stated, "I don't want to participate in this at all." ( Id. at 182-83.) Petitioner later blurted out, "It's not a fair trial." ( Id. at 184.) Petitioner also asked the trial judge if the prosecutor was going to ask the victim to narrate the videotape taken from the store. ( Id. at 196.)

After he finished cross-examining the victim, petitioner had an emotional outburst directed at the victim:

Petitioner: You are the devil.
Court: Mr. Anderson, shut up.
Petitioner: You destroy my life like this, man. Youre a fucking devil, man. That you are, man. And I was hurt and upset about my nephew. That's why this shit happened, man. It wasn't - I wasn't trying to hurt nobody. Your nephew got killed man.
Court: Mr. Anderson, I'm about to call -
Petitioner: Got killed man. Youre heartless ass pig. He got killed, man. Your mother fucking nephew got killed, and ...

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