United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT PETITION FOR WRIT
OF HABEAS CORPUS BE DENIED ECF NO. 1
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.
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.
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).
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.
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
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
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
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 ...