United States District Court, N.D. California
ORDER DENYING CERTAIN RECORD-BASED CLAIMS
WILLIAM ALSUP, District Judge.
Petitioner Oscar Gates, a California state prisoner sentenced to death, seeks a writ of habeas corpus under 28 U.S.C. Section 2254. The parties have filed merits briefing on certain stipulated claims that they agree can be considered without the input of petitioner, who has previously been adjudicated incompetent. In addition, petitioner has filed two motions to expand the record (Dkt Nos. 667 and 698). For the following reasons, all of petitioner's claims at issue on this motion are DENIED. In addition, petitioner's motions to expand the record are DENIED.
On December 10, 1979, Maurice Stevenson and his uncle, Lonnie Stevenson, were waxing his car in front of his grandfather's house in Oakland at about 3:30p.m. Petitioner appeared, holding a gun with the hammer cocked. Petitioner herded Maurice and Lonnie to the side of the house and ordered them to put their hands on the wall, empty their pockets, and remove their jewelry. After Maurice and Lonnie complied with petitioner's directives, petitioner frisked them and asked Maurice as to the whereabouts of Maurice's father, James Stevenson. Maurice replied that he did not know and petitioner told them that he was going to kill them. Petitioner first shot Lonnie, who yelled for his father and started running toward the back of the house, then shot Maurice, picked up the money and some of the jewelry, and fled. Lonnie died but Maurice survived. Some time after the shooting, petitioner called Jimmy Stevenson, Maurice's grandfather, and said that he had killed Lonnie and shot Maurice, that he was going to Los Angeles to kill members of another family, and that when he returned he would finish killing off the Stevenson family. On December 29, 1979, petitioner was arrested in Vallejo, and the gun later determined to be the one that killed Lonnie Stevenson was found on him. See People v. Gates, 43 Cal.3d 1168, 1176-78 (1987).
On January 4, 1980, an indictment was filed in Alameda County. It charged petitioner with murder (Cal. Penal Code § 187(a)), accompanied by the robbery-murder special circumstance (§ 190.2 (a)(17)(A)), two counts of robbery (§ 211), assault with a deadly weapon (§ 245(a)), possession of a firearm by an ex-felon (§ 12021), and escape (§ 4532(b)), among other things. Petitioner pled not guilty to all charges. The trial began on March 16, 1981. At trial, petitioner asserted a claim-of-right defense. He testified about a so-called "Stevenson family forgery ring, " purportedly headed by James Stevenson and Donald "Duck" Taylor, and of which, Lonnie and Maurice Stevenson, Melvin Hines and petitioner were all members. A dispute arose when petitioner did not receive his "big cut" of $25, 000 allegedly promised to him.
In September 1979, a heated argument between petitioner and other members of the forgery ring led to petitioner being fired upon by Maurice and James Stevenson, which resulted in a gunshot wound to petitioner's leg. Thereafter, petitioner learned through intermediaries that he would have to give up his claim to the money or he would be shot. On December 10, 1979, petitioner allegedly spoke with Lonnie Stevenson by phone and made arrangements to pick up the money at Jimmy Stevenson's house at about 3:00p.m. Petitioner went to Jimmy Stevenson's house as had been arranged. Petitioner saw Maurice and Lonnie outside waxing a car. Petitioner allegedly told Maurice and Lonnie that he was there to pick up his money and did not want any trouble, but that he had a gun and could take care of himself. As the three men made their way around the side of the house, petitioner's suspicion was allegedly aroused by some of Maurice and Lonnie's actions, so he patted them down for weapons. After finding none, the three men continued toward the back of the house when petitioner saw Jimmy Stevenson holding a gun. Gunfire erupted. Lonnie and Maurice were shot, and petitioner fled. On May 6, 1981, the jury convicted petitioner of all charges and found the special circumstance allegation to be true.
At the penalty phase, the prosecution presented, as evidence in aggravation, evidence of petitioner's convictions for robbery and for two assaults in connection with a 1978 robbery of a McDonald's restaurant, a 1973 conviction for rape, and a 1973 conviction for kidnapping. The prosecution also presented evidence that petitioner was involved in a 1978 assault and robbery of two women at a Los Angeles mortuary, which had resulted in the death of one of the women. (Petitioner was later convicted of the Los Angeles mortuary crimes in a separate trial.) The case in mitigation consisted of testimony by several of petitioner's family members, several apartment neighbors, and a clinical psychologist. Petitioner's family members described the racially-segregated environment in which petitioner grew up in Belzoni, Mississippi. They testified that petitioner was never in any trouble until an incident at a Western Auto Store when he was approximately 14 to 16 years old; the incident, which apparently involved petitioner, an African-American, striking a white woman who had struck him first, resulted in petitioner spending six months in jail and becoming a target of police harassment and suspicion for any problem that arose thereafter. Petitioner's mother also testified that she visited petitioner in California in 1973 at a jail hospital after he had been beaten by the police. Petitioner's neighbors described petitioner as a friendly, sweet, considerate, good-hearted, good-natured person who never got angry and got along well with people. Dr. Paul Berg, a clinical psychologist, testified that petitioner was "an unusually well-adjusted prisoner" and most likely would not present a problem in prison. See Gates, 43 Cal.3d at 1193-97. On May 28, 1981, the jury returned with a verdict of death for petitioner.
The California Supreme Court affirmed petitioner's conviction and sentence on direct appeal on October 15, 1987. People v. Gates, 43 Cal.3d 1168 (1987). On May 23, 1988, the United States Supreme Court denied a petition for certiorari. Gates v. California, 486 U.S. 1027 (1988).
Subsequent state and federal habeas proceedings ensued, with a focus on, inter alia, petitioner's competency. After much litigation, this matter was stayed in 2004 following an adjudication of petitioner's mental incompetency, as required by Rohan ex. rel . Gates v. Woodford ("Gates"), 334 F.3d 803 (9th Cir. 2003). At that time, attorneys for petitioner and respondent agreed that petitioner was then incompetent to assist counsel. On January 8, 2013, the Supreme Court decided Ryan v. Gonzales, abrogating Gates and holding that an incompetent capital prisoner has no right to an indefinite stay of habeas proceedings. The Supreme Court further held that while the decision to grant a temporary stay is within the discretion of the district court, an indefinite stay is inappropriate if there is no reasonable hope the petitioner will regain competence in the foreseeable future. Ryan, 133 S.Ct. 696, 706-709.
Pursuant to Ryan, this Court lifted the stay. The parties were referred to settlement proceedings with Magistrate Judge Beeler. In addition, the Court ordered proceedings on the merits of petitioner's federal habeas proceedings to re-commence. Recognizing that petitioner's competency remains an issue, the Court ordered the parties to brief the merits of certain stipulated claims that did not need the input of petitioner to be addressed. Those stipulated claims are the subject of this order.
1. HABEAS REVIEW
The habeas statute authorizes this Court to review a state court criminal conviction "on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The purpose of the writ of habeas corpus is to "protect individuals from unconstitutional convictions and... to guarantee the integrity of the criminal process by assuring that trials are fundamentally fair." O'Neal v. McAninch, 513 U.S. 432, 441 (1995); see also Brecht v. Abrahmson, 507 U.S. 619, 632-33 (1993). Because federal habeas review delays finality and burdens state-federal relations, habeas doctrines must balance the protection from unlawful custody the writ offers against the "presumption of finality and legality" that attaches to a state-court conviction after direct review. See Brecht, 507 U.S. at 635-38; McCleskey v. Zant, 499 U.S. 467, 490-91 (1991). Accordingly, a federal habeas court must in most cases presume that state court findings of fact are correct. 28 U.S.C. § 2254(d). In contrast, purely legal questions and mixed questions of law and fact are reviewed de novo. See Swan v. Peterson, 6 F.3d 1373, 1379 (9th Cir. 1993), cert. denied, 513 U.S. 985 (1994). In such circumstances, and when the state court has made no factual findings regarding the claim at issue, petitioner bears the burden of proving, by a preponderance of the evidence, the facts necessary to support his claims. See, e.g., Garlotte v. Fordice, 515 U.S. 39, 46-47 (1995).
Even if a petitioner meets the requirements of Section 2254(d), habeas relief is warranted only if the constitutional error at issue had a substantial and injurious effect or influence in determining the jury's verdict. Brecht, 507 U.S. at 638. Under this standard, petitioners "may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice.'" Brecht, 507 U.S. at 637 (citing United States v. Lane, 474 U.S. 438, 439 (1986)).
2. TEAGUE DOCTRINE
Teague prevents a federal court from granting habeas relief to a state prisoner based on a constitutional rule of criminal procedure announced after his conviction and sentence became final. Teague v. Lane, 489 U.S. 288, 310-16 (1989); see also Penry v. Lynaugh, 492 U.S. 302, 313-14 (1989) (the non-retroactivity principle is applicable in a capital sentencing context). It prohibits federal courts from either creating or applying new rules on collateral review. See Butler v. McKellar, 494 U.S. 407, 412 (1990).
Teague instructs that "[a] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S. at 301. Put differently, a decision sets forth a new rule when it "breaks new ground or imposes a new obligation on the States or the Federal Government." Butler, 494 U.S. at 412. The new rule does not, however, foreclose the specific application of a previously established rule. The Supreme Court has explained that "if the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule." Williams, 529 U.S. at 383 (quoting Wright v. West, 505 U.S. 277, 308-09 (1992)).
1. CLAIM 10
In Claim 10, petitioner maintains that the trial court erred in failing to instruct the jury that the charged robbery-murder special circumstance required a specific intent to kill under Carlos v. Superior Court, 35 Cal.3d 131, 153-154 (1983). According to petitioner, this failure violated petitioner's constitutional rights and mandates reversal of his death sentence.
Under California law, "intent to kill is not an element of the felony-murder special circumstance when the defendant is the actual killer." James v. Borg, 24 F.3d 20, 25 (9th Cir. 1994). "Intent to kill was an element of felony-murder special circumstance between 1983 and 1987, however." Ibid. (citing Carlos v. Superior Court, 35 Cal.3d 131, 153-154 (1983), overruled by People v. Anderson, 43 Cal.3d 1104, 1147 (1987)). Prior to the Anderson decision overturning Carlos, however, the California Supreme Court had determined that Carlos's holding that intent to kill was an element of felony-murder special circumstance applied retroactively. People v. Garcia, 36 Cal.3d 539, 549 (1984). Because of that decision, "confusion arose in the courts over whether Carlos or Anderson controlled." James, 24 F.3d at 25. The issue was resolved by People v. Poggi, 45 Cal.3d 306, 326-327 (1988), where the California Supreme Court held that the Carlos rule applies only when the felony-murder special circumstance is alleged to have occurred after Carlos and before Anderson. 
Petitioner's robbery and murder of Lonnie Stevenson occurred on December 10, 1979 and he was tried for his crimes in 1981, well before the Carlos decision. The Ninth Circuit has squarely addressed this issue, and confirmed that in cases like petitioner's, where the charged felony-murder special circumstance occurred before Carlos, Anderson governs, and "intent to kill was not an element of the felony-murder special circumstance." James, 24 F.3d at 26. Accordingly, petitioner was not entitled to an instruction that the charged robbery-murder special circumstance required a specific intent to kill.
In a separate decision, the Ninth Circuit addressed the issue of whether changing California law regarding specific intent for felony-murder special circumstances, specifically those decisions such as Poggi that mandated retroactive application of the Anderson decision and limited the requirement of a specific intent element to the time period of 1983-1987, violated a petitioner's due process rights under the ex post facto clause. Hunt v. Vasquez, 899 F.2d 878, 881 (9th Cir. 1990) (citing Bouie v. City of Columbia, 378 U.S. 347 (1964)). Petitioner here also makes a Bouie argument, but his argument is without merit under the controlling authority of Hunt. The Ninth Circuit dismissed petitioner Hunt's argument, holding that "[t]he defect in his argument is that the current law is identical to the law that was in effect at the time of his offense. There is no ex post facto problem. [Petitioner] was on notice as to the punishment he could receive. No ex post facto change in the law occurred." 899 F.2d at 881. So too here. At the time of petitioner's crimes and trial, California law did not require specific intent for felony-murder special circumstances. or is specific intent currently required. Thus, petitioner can show no error under Bouie.
Under both California and federal law, a specific intent to kill was not an element of the charged robbery-murder special circumstance at the time of petitioner's trial, and thus the trial court was under no obligation to give an instruction regarding specific intent. Based on the controlling authority of James and Hunt, petitioner's claim must be denied.
2. CLAIM 11
In Claim 11, petitioner maintains that the trial court committed constitutional error by failing to instruct the jury that, in order to find true the robbery-murder special circumstance, it was required to find beyond a reasonable doubt that the murder was committed to advance the commission of the robbery.
While in this pre-AEDPA case the Court must consider petitioner's claim de novo, the California Supreme Court's resolution of this issue - which concerns an issue of California law - is nonetheless instructive. The California ...