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Hoover v. Frauenheim

United States District Court, E.D. California

February 23, 2018

SCOTT FRAUENHEIM, Warden, Pleasant Valley State Prison, Respondent.



         Bradley Deon Hoover, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Hoover is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Pleasant Valley State Prison. Respondent has answered, and Hoover has replied.


         In 1994, victim Michael Augustin was kidnapped and killed. Hoover, along with co-defendant Andrea Marie Carvalho, was initially charged with the crimes by felony complaint filed on November 1, 1994. At that time, Hoover was incarcerated on an unrelated crime, and was subsequently convicted and sentenced to prison on the other case. It was not until 2011, 17 years after the initial felony complaint was filed, that Hoover proceeded to a jury trial on the kidnapping and murder charges. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Hoover and the procedural history of his case:

         [Hoover 's] Charging and Prosecution 1994 1995

         The kidnapping and murder were alleged to have occurred in Sacramento County on August 8, 1994, but [Hoover]was not immediately charged. He was under investigation for an unrelated crime in Solano County as of March 1994 and was arrested in that case on October 20, 1994.

         On November 1, 1994, the People filed a felony complaint against [Hoover] and Andrea Marie Carvalho, FN2 accusing both of the murder and kidnapping of victim Michael Agustin. Carvalho's preliminary hearing, held in December 1994, ended in dismissal, with the magistrate finding insufficient evidence on all counts.FN3 [Hoover] was not arraigned on the complaint as his Solano County case was ongoing; he was subsequently prosecuted, convicted, and sentenced to prison in the Solano County case.

FN2. Carvalho later married [Hoover].
FN3. As we discuss post, a transcript of Carvalho's preliminary hearing was not available at [Hoover's] trial.

         On December 5, 1995, the Sacramento County Sheriffs Department filed a detainer against [Hoover], notifying him of the present case and his right to request its disposition under section 1381.FN4 FN4. Section 1381 provides in pertinent part that a defendant serving a prison sentence, if charged in any other pending criminal proceeding, must be brought to trial within 90 days after the defendant requests trial in writing.

         On January 7, 2011, [Hoover] filed a demand for trial in the present case. On January 28, 2011, the District Attorney's investigator interviewed [Hoover] in prison. [Hoover] told the investigator this case had had "no bearing on [him] whatsoever for the last 16 years[, ]" but he had filed his request for trial now because he wanted to get a job in prison and the hold on him from this case prevented it.

         On February 7, 2011, the court arraigned [Hoover] on the original complaint; three days later, the People filed an amended complaint, naming only [Hoover]. He entered a plea of not guilty. On March 1, 2011, the trial court held [Hoover] to answer on the amended complaint, then deemed it an information.

         The People thereafter dismissed the original case and rearrested [Hoover] on March 29, 2011. [Hoover] waived preliminary hearing. On April 22, 2011, the People filed a new information, case No. 11F02341.

         [Hoover 's] Motion to Dismiss

         On June 16, 2011, [Hoover] filed a "motion to dismiss or for other sanctions due to dilatory prosecution." He argued that the People violated his speedy trial rights under the California Constitution because the 17-year delay in bringing the case to trial had prejudiced him by hindering his ability to prepare his defense. As evidence, he cited (1) his inability to recall the facts surrounding the alleged crimes; (2) the alleged destruction of the preliminary hearing transcript in Carvalho's case; (3) the disappearance of witness John Wagner, who was never interviewed by defense counsel; (4) the lack of any further investigation of the case since defendant's arrest in 1994 on the Solano County case; and (5) the unavailability of witness Terry Walling.


         The People opposed the motion, arguing that because, aside from Wagner and Walling (whose unavailability benefitted [Hoover]), all material witnesses had been located and subpoenaed, and all material physical evidence had been preserved, [Hoover] had not shown actual prejudice under the California Constitution.™5 FN5. On appeal, [Hoover] agrees that his Sixth Amendment (federal) speedy trial right is not at issue as it was not triggered until the filing of the information in case No. 11F02341. (See, e.g., People v. Martinez (2000) 22 Cal.4th 750, 756 (Martinez))

         [Hoover 's] Response

         [Hoover] cited the following as further evidence of prejudice: (1) Wagner's mother informed the police in November 2009 that around the time Wagner disappeared, a cousin named Sam Kissell had threatened to kill him over a drug debt; the police had done nothing to follow up on this information, which might bear on Wagner's credibility. FN 6 (2) The police and the District Attorney's investigator had only just interviewed Dale Allbright, whose motorcycle broke down near the Rio Vista Bridge around 2:00 a.m. on August 9, 1994, and who was picked up by an unidentified male in the only car Allbright had seen on the road that evening. Timely investigation of his story might have revealed that the unidentified male murdered the victim, or led to the discovery that someone else other than [Hoover] did so.FN7 (3) All police dispatch records from the night of the crime had been destroyed or purged due to the passage of time.

FN6. Wagner's mother testified that she had actually told the police about this near the time of Wagner's disappearance.
FN7. Allbright testified at trial. He could not say precisely where his motorcycle broke down or where the unknown driver (whom he described only as "a white guy") picked him up. He did not see police cars or helicopters that night.

         The Trial Court's Pretrial Ruling

         The trial court ruled tentatively in limine that [Hoover] had shown "some evidence of actual prejudice" from the delay in prosecution, based on the lack of a transcript of Carvalho's preliminary hearing and the destruction of the police dispatch logs.FN8 The court did not mention any other item cited in defendant's briefing. It indicated it did not find defendant's claim of faded memory persuasive as to prejudice, but that it might instruct the jury on faded memories and missing witnesses if the evidence proved to warrant such instruction.

FN8. Defense counsel declared that, according to the Sacramento Court Reporter's Office, the transcript had been destroyed. The prosecutor, who had also represented the People at the preliminary hearing in 1994, declared that at the hearing Carvalho's defense attorney had argued Carvalho was merely present at the crime scene. He added that it was the policy of the Sacramento County Superior Court (in 1994 and continuing) not to prepare transcripts of preliminary hearings in cases where defendants were not held to answer unless a party so requested.
Defense counsel asserted that Carvalho had told him that at her preliminary hearing the story told by [Hoover's] accusers, as presented by the investigating officer pursuant to Proposition 115, was impeached. The prosecutor replied that, as stated in his declaration, the magistrate had not held Carvalho to answer due to the absence of proof that she had any control over the situation leading to the murder, rather than because the accusation against [Hoover] was credibly challenged.

         Having found prejudice from the delay in prosecution, the trial court asked the prosecutor to justify the delay. The court said it thought the People might have been hoping witness Wagner would "resurface." The prosecutor agreed: "That is the reason." The trial court denied [Hoover's] motion to dismiss, but left open the option to revisit the issue of "faded memories" if warranted based on the evidence presented at trial.

         Trial Evidence

         On August 8, 1994, at 10:48 p.m., officers dispatched to a rural location near Rio Vista for a reported pedestrian-vehicle accident found victim Agustin, fatally shot in the head. Agustin had been shot first at one location, then again at another location about 200 yards away, by a single firearm.FN9

FN9. The officers did not disclose to the media or the victim's family how many times Agustin was shot or at how many locations.

         On the morning of August 8, 1994, Agustin visited his sister, Cynthia Hylton, at her home in Vallejo. She knew he was "involved in the drug scene" and hung out at Terry Waiting's house. He did not have a job or a regular place to live. He had become increasingly fearful and paranoid in the last few months. He arrived on a new motorcycle (which he did not have the money to buy, as far as she knew) and put it in her garage; he also had a gun. He telephoned someone on her home phone, yelling, "Hey, I told you not to tell" or "Why did you tell him?" He borrowed her car for a short time, returned it, and left again.

         Alfredo Ramirez, Agustin's nephew, saw Agustin on the afternoon of August 8, 1994 FNio Ramirez had recently observed changes in Agustin's behavior that he perceived to be related to methamphetamine use. Agustin called Ramirez from Hylton's home, asking for a ride in his car. Ramirez took him to get money from someone, then drove him to ...

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