United States District Court, N.D. California
ORDER DENYING CLAIMS 6A, 6B, AND 7
WILLIAM ALSUP United States District Judge.
convicted petitioner, Oscar Gates, in 1981 of, inter
alia, murder (Cal. Penal Code 187(a)), accompanied by
the robbery-murder special circumstance (Section 190.2
(a)(17)(A)), two counts of robbery (Section 211), assault
with a deadly weapon (Section 245(a)), possession of a
firearm by an ex-felon (Section 12021), and escape (Section
4532(b)). He seeks a writ of habeas corpus under Section
2254, and the parties have now briefed three of the many
claims in the petition. Petitioner requests that if relief is
not granted, a ruling on the claims be deferred until he can
file his motion for evidentiary hearing, which would include
a request for hearing on these claims. He also argues that
these claims are inextricably interwoven with Claims 8D, 12,
and 13, which either have not been briefed or have been
deferred pending submission of a motion for evidentiary
hearing, and that such interconnection warrants a delayed
ruling. Because these claims can be decided on the record
before the state court, Claims 6A, 6B and 7 are Denied for
the following reasons.
December 10, 1979, Maurice Stevenson and his uncle, Lonnie
Stevenson, waxed his car in front of Maurice's
grandfather's house in Oakland at about 3:30 p.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, petitioner frisked them, then asked Maurice as to
the whereabouts of Maurice's father, James Stevenson.
Maurice replied that he did not know. Petitioner replied that
he planned 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 with some
of the jewelry, and fled. Lonnie died but Maurice survived.
Some time after the shooting, petitioner called Jimmy
Stevenson, Maurice's grandfather, to say that he had
killed Lonnie and shot Maurice, that he intended to go 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, police arrested petitioner in Vallejo with
the gun used to kill Lonnie. See People v. Gates, 43
Cal.3d 1168, 1176-78 (1987).
January 4, 1980, a grand jury indicted petitioner in Alameda
County. The indictment 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. 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.
testimony also revealed that, in September 1979, a heated
argument between petitioner and other members of the forgery
ring led to Maurice and James Stevenson shooting petitioner,
resulting 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
told a different story to the jury.
testified that he made arrangements by phone with Lonnie to
pick up the money owed to him at Jimmy's house on
December 10, 1979, at about 3:00 p.m. According to
petitioner, he arrived at Jimmy's house, where he saw
Maurice and Lonnie outside waxing a car. Petitioner testified
that he told Maurice and Lonnie that he wanted his money,
that he didn't want any trouble, and 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 became
suspicious 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 where petitioner
saw Jimmy holding a gun. Gunfire erupted. Lonnie and Maurice
were shot. Petitioner fled.
6, 1981, the jury convicted petitioner of all charges and
found the special circumstance allegation to be true.
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 of petitioner's involvement 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. A jury later convicted petitioner of the Los Angeles
mortuary crimes in a separate trial.
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 never got into 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.
California Supreme Court affirmed petitioner's conviction
and sentence on direct appeal on October 15, 1987.
Gates, 43 Cal.3d at 1168. On May 23, 1988, the
United States Supreme Court denied a petition for certiorari.
Gates v. California, 486 U.S. 1027 (1988).
state and federal habeas proceedings ensued, with a primary
focus on, inter alia, petitioner's competency.
This Court decided to move forward with the case despite
Petitioner's mental problems, but the Court of Appeals
directed the Court to stay the matter. A 2004 order,
therefore, stayed this matter, as required by Rohan ex.
rel. Gates v. Woodford (“Gates
II”), 334 F.3d 803 (9th Cir. 2003). At that time,
all counsel agreed that petitioner was incompetent to assist
January 8, 2013, the Supreme Court decided Ryan v.
Gonzales, ___ U.S. ___, 133 S.Ct. 696, 706-709 (2013),
abrogating Gates II and holding that an incompetent
capital prisoner has no right to an indefinite stay of habeas
proceedings. Ryan held that while the district court
retains the discretion to grant a temporary stay, it should
not enter an indefinite stay if the petitioner reasonably
cannot be expected to regain competence in the foreseeable
to Ryan, this Court lifted the stay. The parties
engaged in settlement proceedings with Magistrate Judge
Beeler without success. In addition, the Court ordered
proceedings on the merits of petitioner's federal habeas
proceedings to re-commence, and subsequently addressed
numerous claims on the merits (Dkt. No. 715). Recognizing
that petitioner's competency still presented an issue,
the Court appointed independent expert Dr. Jessica Ferranti
to examine petitioner (Dkt. No. 740). Dr. Ferranti concluded
that, as the result of mental disorder, petitioner is
incompetent, i.e., that he does not have the
capacity to make rational choices with respect to his Court
proceedings or to communicate rationally with his attorneys
(Ferranti Report at 16-18). Both sides agreed that petitioner
lacks competency to assist counsel. Under Ryan,
however, incompetency no longer constitutes grounds to stay
the matter indefinitely. Petitioner subsequently filed a
motion to stay pending compulsory restoration proceedings;
the Court denied petitioner's motion and ordered
consideration of petitioner's claims on the merits to
continue (Dkt. No. 775). Several claims have since been
denied or deferred pending the filing of a motion for an
evidentiary hearing (Dkt. Nos. 777, 794).
petitioner filed his initial federal habeas petition before
the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996, pre-AEDPA standards apply to all of
petitioner's claims, even those added by amendment after
AEDPA's effective date. See Thomas v. Chappell,
678 F.3d 1086, 1100-01 (9th Cir. 2012). Under those
standards, we must “presume that the state court's
findings of historical fact are correct and defer to those
findings in the absence of convincing evidence to the
contrary or a demonstrated lack of fair support in the
record.” Mayfield v. Woodford, 270 F.3d 915,
922 (9th Cir. 2001) (internal quotation marks omitted)
(citing 28 U.S.C. 2254(d) (1994)). State court determinations
with respect to mixed questions of law and fact are reviewed
de novo. Ibid. Pure questions of law are
reviewed de novo. Ibid. Ultimately,