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Faulk v. Long

United States District Court, N.D. California

February 2, 2015

GREGORY N. FAULK, Petitioner,
DAVID LONG, Warden, Respondent.


EDWARD M. CHEN, District Judge.


Gregory N. Faulk filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. § 2254. In his petition, he contends that the state appellate court denied him due process and effective assistance of counsel when it denied a defense request for additional funds to further investigate an alleged instance of juror misconduct. The petition will be DENIED.


A. The Crimes

The California Court of Appeal described the evidence regarding the crimes that led to the conviction of Mr. Faulk of carjacking, unlawful taking of a car, and second degree burglary.

In the fall of 2010, defendant was homeless and went to the Hayes Mansion hotel in San Jose to look for shelter. There, he broke into the spa on the property by making holes in the wall of the hotel gym, and reaching in to unlock the door to the spa. When the hotel staff arrived at the spa in the morning of September 4, 2010, they discovered defendant inside. Defendant ran out of the spa and through the hotel parking lot, eventually jumping a wrought iron fence into a condominium or apartment complex.
A few hours later, Huong Ho was at her parent's condominium complex to check her mail. She parked her Mercedes next to the mailboxes. Ho tried to open her mailbox, but was unsuccessful. Ho saw defendant standing near the mailboxes, and began talking to him. Defendant told her he was the building manager and that he had a master key to the mailboxes at his house. Defendant told Ho that he would open her mailbox if she drove him to his house so he could get his master key. Ho agreed, and defendant got into her car and gave Ho directions of where to go. As Ho slowed down to stop her car where defendant directed, defendant suddenly punched her in the eye, and ordered her to get out of the car. Ho got out of the car, leaving her cell phone, purse, and shoes in the car. Defendant sped away in Ho's car. Ho called the police using a phone of a nearby resident. When the police arrived, she gave a description of defendant, and the police photographed the injury to her eye.
Defendant abandoned Ho's car almost immediately after driving away. He then took a 1992 Toyota belonging to Trong Nguyen from 44 South Terrace Court. Defendant abandoned the Toyota in a parking lot of a shopping center on Monterey Highway near Blossom Hill Road. Defendant used money from Ho's wallet to buy clothes at Walmart and Walgreen's. Defendant changed his clothes in the bathroom of the Walmart and a nearby Taco Bell. Police later found Ho's wallet in the Taco Bell bathroom, and arrested defendant at a nearby bus stop. Following his arrest, defendant's blood tested positive for methamphetamine.
Defendant testified in his own defense at trial. He essentially admitted all of the alleged crimes; however, he claimed he never punched Ho, and did not use any force in taking her Mercedes. In addition, defendant said that Ho asked him if he could get her some methamphetamine, and agreed to drive him to a location where he could find the drug. The two then smoked methamphetamine together in the car, and when Ho got out of the car to put her pipe into the trunk, defendant slid into the driver's seat and drove away in Ho's car. Defendant said when he took the car, there was no injury to Ho's eye.
In addition to his own testimony, defendant called several witnesses at trial who testified that he was not a violent person.

Resp. Ex. D, California Court of Appeal Opinion, pp. 1-3.

B. Procedural History

Two trials were held. At the first trial, in May 2011, a jury found defendant guilty of unlawful taking of a car ( see Cal. Veh. Code § 10851) and second degree burglary ( see Cal. Penal Code §§ 459, 460), but deadlocked on the charge of carjacking ( see Cal. Penal Code § 215). The court found true the allegations that defendant had suffered three prior strike and serious felony convictions ( see Cal. Penal Code §§ 667(a)-(i), 1170.12). In July 2011, a second trial was held on the carjacking charge, at which a jury found defendant guilty of carjacking. At sentencing in August 2011, the court struck two of the prior conviction allegations and sentenced Mr. Faulk to 23 years and eight months in prison. Cal.Ct.App. Opinion, p. 3.

Mr. Faulk appealed. The California Court of Appeal affirmed the judgment of conviction. The California Supreme Court denied his petition for review. He then filed this action. The federal habeas petition asserts that the California Court of Appeal's denial of his request for further investigative funds violated his federal constitutional rights.

C. The Request For Investigative Funds

While the direct appeal was pending, Mr. Faulk's appellate counsel applied to the California Court of Appeal for $750 to hire an investigator to find and interview a juror to inquire about potential juror misconduct. Appellate counsel declared that he had received a telephone call from defense trial counsel, Casey Clift, who informed him of the following: (a) "the deputy district attorney who tried the case spoke to some of the jurors outside the courtroom after the second trial;" (b) Mr. Clift was not present; (c) the deputy district attorney later told Mr. Clift that "an unidentified juror told her the juror saw Daniel St. Peter maddogging' the victim when the victim was on the stand;" and (d) Daniel St. Peter was not in the courtroom, because of the exclusion order, except for when he testified for the defense." Resp. Ex. F at 3-4.[1] The application also provided the following information: Appellate counsel had requested the trial court to unseal juror identity information, and the trial court agreed to contact Juror No. 12 to obtain his consent or objection to release of his identity. The juror had objected to a release of his identity; over the juror's objection, the trial court ordered the juror's identity to be released with a protective order limiting its dissemination to appellate counsel and an investigator/agent. Id. at 4. Appellate counsel had tried to contact Juror No. 12 at the telephone number provided and received no answer. Appellate counsel had then contacted a private investigator who said he was available to contact and attempt to interview Juror No. 12 in 10 hours or less at an hourly rate of $75. Id. at 5. Appellate counsel thought the juror might be trying to avoid contact, and thought a "professional investigator will be more efficient" than appellate counsel in "resolving this investigation." Id.

The California Court of Appeal granted the application for funds to hire the investigator, but only ...

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