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Franks v. Spearman

United States District Court, E.D. California

July 16, 2019

TOM MARK FRANKS, Petitioner,
M.E. SPEARMAN, Respondent.


         Petitioner Tom Mark Franks, a state prisoner without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner contends that his trial counsel provided ineffective assistance. However, he has not shown that he suffered prejudice as a result of his counsel's alleged errors. We therefore recommend that the court deny the petition.

         I. Background

         Petitioner is incarcerated pursuant to the judgment of the Stanislaus County Superior Court, No. 1444611. A jury acquitted petitioner of second-degree murder for the death of Jacqueline Miller but convicted him of the lesser included offense of voluntary manslaughter and found applicable the firearm-use enhancement. The trial court sentenced petitioner to an aggregate term of thirty-nine years in prison.

         We set forth below the facts of the underlying offenses, as stated by the California Court of Appeal, Fifth District (“Court of Appeal”). A presumption of correctness applies to these facts. See 28 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).

         A. The shooting.

On May 4, 2012, Jacqueline (Dotty) Millan was shot in her head. The shooting occurred near a house on Vernon Avenue in Modesto which Jacqueline was renovating with appellant. There was no evidence of gun powder around Jacqueline's wound, indicating it was not a close-range shot. There was no exit wound. The bullet wound was approximately one centimeter in size. The bullet struck her skull and shattered into several pieces, making it impossible to determine its caliber. Based on the size of the entry wound, a deputy believed a small handgun could have been used to shoot her. She was declared brain dead on May 7, 2012.

         B. The neighbor's testimony.

Floriberto Aguilar saw Jacqueline in the early evening of the shooting. She was walking towards the Vernon house, which was two houses from his residence. Aguilar went inside his residence and opened a window. He could hear Jacqueline arguing with appellant, recognizing their voices from past encounters. Jacqueline was accusing appellant of cheating on her. Aguilar knew appellant was Jacqueline's boyfriend. The arguing lasted 20 or 30 minutes. He called 911 when it intensified.
After calling authorities, Aguilar poked his head out his window. It was dark outside. He saw Jacqueline's silhouette as she stood outside, and he did not see anyone else. He pulled his head back inside and continued to hear Jacqueline arguing with appellant. After some time, appellant was quiet for three to five minutes. At some point Aguilar saw a “tall, skinny male” run out of a nearby alley. This person turned and ran down the street in Jacqueline's general direction. Aguilar did not believe the skinny male was appellant. Aguilar then heard three shots and sounds of someone running away. He described the shots as if coming from “a little toy cap gun” which made a “popping noise.” Aguilar called 911 again and reported the shots fired. He looked out his window and saw two vehicles parked in the street. Aguilar could see a man was in one of the vehicles. Aguilar exited his house and found Jacqueline lying on the ground, severely injured but still conscious.

         C. Appellant's initial statements.

Sheriff's deputies arrived at the shooting scene at approximately 10:00 p.m. and conducted a search of the area. Later that night, deputies established a perimeter around the Vernon house. Following commands from deputies, appellant exited the rear of that house. He was taken into custody and transported to a sheriff's station. Sometime after 11:25 p.m. that night, a deputy administered a gunshot residue test on appellant's hands which was negative. The lack of gunshot residue either indicated appellant did not fire a gun, he fired a gun but no particles were deposited on the areas which were sampled for testing, he fired a gun and no residue was left on his hands, or any deposited residue was removed by the time the samples were collected.
Deputies conducted a general search around the crime scene, and searched the Vernon residence and a neighboring storage shed. No. gun or ammunition was located. No. spent shell casings were located. In the shed, a gun holster was located, which appeared very worn. The holster was designed to hold a compact-sized gun, possibly having a two- or three-inch barrel. Deputies were unable to search a burned-out detached garage located at the Vernon house due to its structural unsoundness. Deputies also did not search two septic tanks on the property which were not sealed but were covered with plywood. Based on the covering, a deputy opined at trial that someone could have tossed something into a septic tank.
At the sheriff's office, appellant told deputies he had been sleeping in the Vernon house when the shooting occurred. He said he had been at Jacqueline's residence earlier in the evening, identifying himself as her “off and on” boyfriend of 27 years, and her live-in boyfriend over the last year. He denied arguing with Jacqueline that night and said he was asleep when any arguing occurred. He said he was oblivious to what happened outside. He claimed to have not heard any of the shots, sirens or noises. Appellant then said he had an earlier argument with Jacqueline that day at another location, and he had been drinking earlier. He claimed to have gone to the Vernon house alone and passed out from too much alcohol.
When shown the gun holster from the shed, appellant said he did not know anything about it and claimed somebody was setting him up. He later admitted that everything in the shed belonged to him. He opined it was Steve Millan, Jacqueline's estranged husband, who hurt Jacqueline. Appellant was confronted with Aguilar's statements that appellant was heard arguing with Jacqueline before the shots. Appellant continued to deny having any argument with her outside the Vernon house. He showed very little emotion upon hearing that Jacqueline was not doing well and would probably not live.

         D. Appellant changes his story.

Several days later, after being placed into jail, appellant asked to speak again with a deputy. In the subsequent interview, appellant changed his story regarding the night of the shooting. He said he returned to the Vernon house and Jacqueline arrived shortly thereafter, banging on the door. She accused him of having an affair and cheating on her. The argument escalated and became physical. He said Jacqueline swung at him on the front porch. He gave her a bear hug and they moved to the front yard. He said “all of a sudden a gun comes out of nowhere.” He had no idea where the gun came from. A single shot occurred. He let go of Jacqueline, walked back inside the Vernon house and fell asleep. He said he did not check on Jacqueline's well-being because he ...

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