Appendix — Woodford v. Morris

No. 001322 FEB 1 4 200%

Ee Pig ee

IN THE SUPREME COURT OF THE UNITED STATES

JEANNE WOODFORD, Warden, California State Prison at San

Quentin, Petitioner,

Vv.

BRUCE WAYNE MORRIS, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

NINTH CIRCUIT COURT OF APPEALS

APPENDICES

PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General of the State of California

DAVID P. DRULINER

Chief Assistant Attorney General

ROBERT R. ANDERSON

Senior Assistant Attorney General

SUSAN RANKIN BUNTING

Deputy Attorney General

WARD A. CAMPBELL

Supervising Deputy Attorney General

Counsel of Record

1300 I Street

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 324-5251

Fax: (916) 324-2960

Counsel for Respondent

INDEX

Ninth Circuit Court of Appeals Opinion

ie ti ae ng.) SR EEE POET Fr Oe) OE ene 1-10

Ninth Circuit Court of Appeals Order Denying

WIN nd va hanes Ads ba ae eek eas 11

Order Granting Respondent’s Motion for Summary

Judgment and Denying Petition for Writ of Habeas

Corpus (United States District Court No. CIV S 92-

eclectic c.f RE Oe EES Te ee 12-23

Finding and Recommendations filed May 27, 1997

(United States District Court No. CIV S 92-0483 EJG

cocci BELO RT PEO EOP ET RESET CT ET UE OUNCE? 24-64

Finding and Recommendations filed August 4, 1998

(United States District Court No. CIV S 92-0483 EJG

OE EOS SPT rep ner re 65-227

Petition fot Writ of Habeas Corpus

(California Supreme Court No. S004781) ..... 228-293

California Supreme Court Order Denying Petition for

Writ of Habeas Corpus (No. S004781) .......... 294

Petitioner’s Motion for Discovery

(United States District Court No. CIV S 92-0483 EJG

SIE kas cee es cee ea eeeues 295-312

Petitioner’s Reply to Summary Judgment Motion

(United States District Court No. CIV S 92-0483 EJG

SEE Fie dAwen can Seess bead cobs ikke 313-383

Memorandum Re: Filing of State Habeas Petition

(United States District Court No. CIV S 92-0483 EJG

CE 56 eee dw ELON E NG dnd weds 384-387

Statutes and Rules Involved in the Case ...... 388-393

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE WAYNE MORRIS )_ No. 99-99028

Petitioner-Appellant ) D.C.No.

) CV-92-00483-EJG-GGH

v. )

)

JEANNE WOODFORD, ) OPINION

Acting Warden of )

California State Prison at _)

San Quentin )

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of CaliforniaEdward J. Garcia,

District Judge, Presiding

Argued and Submitted

July 10, 2000--Portland, Oregon

Submission Deferred July 12, 2000

Resubmitted August 15, 2000

Filed October 5, 2000

Before: Warren J. Ferguson, Susan P. Graber, and

William A. Fletcher, Circuit Judges.

Opinion by Judge Graber

COUNSEL

Marianne D. Bachers, San Francisco, California, and Tony

Tamburello, Tamburello, Hanlon & Waggener, San_

2

Francisco, California, for the petitioner-appellant.

Ward A. Campbell and Susan Rankin Bunting, Deputy

Attorneys General, Sacramento, California, for the

respondent-appellee.

Michael Pescetta, Assistant Federal Public Defender, Las

Vegas, Nevada, for the amicus curiae.

OPINION

GRABER, Circuit Judge:

Petitioner Bruce Wayne Morris was sentenced to

death in California for the 1985 murder of Rickey Van Zandt.

He appeals the district court's denial, on summary judgment, of

his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

EARLIER PROCEEDINGS

At the close of the guilt phase of the trial, on June 22,

1987, the jury found Petitioner guilty of first-degree murder and

robbery and further found the special circumstance that

Petitioner had committed the murder during the commission of

the robbery.

The trial moved to a penalty phase. Evidence was

introduced in mitigation and aggravation. At the close of the

evidence, the jury retired to deliberate. After requesting that the

district court clarify a jury instruction, the jury sentenced

Petitioner to death.

Petitioner appealed. While his appeal was pending in

state court, he filed his first state petition for a writ of habeas

corpus in the California Supreme Court. That petition was

denied on September 7, 1990.

On March 28, 1991, a divided California Supreme

Court affirmed Petitioner's conviction and sentence of death on

direct appeal. See People v. Morris, 807 P.2d 949 (Cal.), cert.

denied, 502 U.S. 959 (1991).

On March 27, 1992, Petitioner filed an application for

stay of execution and a request for appointment of counsel in

federal court. Counsel was appointed in August 1992. On June

15, 1993, Petitioner filed a petition for habeas corpus in federal

district court. The state moved to dismiss for failure to exhaust

state remedies. On December 6, 1993, the district court granted

in part the motion to dismiss and issued an order staying the

case to allow Petitioner to exhaust state remedies.

On December 1, 1995, Petitioner filed a second

petition for habeas corpus in state court. The California

Supreme Court denied the petition in a one-page order filed on

December 6, 1995. In that order, the court concluded that the

petition was "untimely" under Jn re Clark, 855 P.2d 729,

737-40 (Cal. 1993). The court also denied the petition "on the

merits," but without elaboration.

Petitioner returned to federal court and, on January

17, 1996, filed his first amended petition for habeas corpus.

That petition is the subject of this appeal.

On May 15, 1996, the state moved for summary

judgment. In its motion, the state argued (among other things)

that all the claims that Petitioner had raised in his second

state-court petition for habeas corpus were procedurally barred

in federal court as a result of the denial of the state petition on

procedural grounds. The state also argued that several other of

Petitioner's claims were procedurally barred because Petitioner

had waived them or had failed to exhaust state remedies. The

magistrate judge agreed and, on May 27, 1997, recommended

that all or part of 13 of Petitioner's claims be denied on

procedural grounds. The district court adopted the magistrate

judge's recommendation.

The magistrate judge then addressed the remainder of

Petitioner's claims on the merits. On March 3, 1998, the

magistrate judge issued Findings and Recommendations on

claims 36 and 40 of Petitioner's petition. Those claims address

an error in a printed instruction that was given to the jury during

the penalty phase. The magistrate judge recommended that

those claims be granted and that Petitioner receive a new

penalty-phase trial.

On August 4, 1998, the magistrate judge issued

Findings and Recommendations on Petitioner's remaining

claims. The magistrate judge recommended that those claims

be denied.

On June 3, 1999, the district court issued an order

granting the state's motion for summary judgment as to all of

Petitioner's claims. The district court rejected the magistrate

judge's recommendation as to claims 36 and 40, concluding

that the error in the jury instruction, if any, was harmless. The

court adopted without discussion the magistrate judge's

recommendation that the remaining claims be denied.

Petitioner then filed a request for a Certificate of

Probable Cause (CPC), which the district court granted. This

timely appeal followed.

STANDARD OF REVIEW

[1] This court reviews de novo a district court's

decision to deny a petition under 28 U.S.C. § 2254. See McNab

v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (per curiam).

Because Petitioner filed his petition before the effective date of

the Antiterrorism and Effective Death Penalty Act (AEDPA),

the provisions of that Act do not apply to the merits of this

appeal. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997).

However, AEDPA's procedural requirements do apply, because

Petitioner filed his notice of appeal after the statute's effective

date. See Slack v. McDaniel, 120 S. Ct. 1595, 1603 (2000).

DISCUSSION

I. Petitioner's Certificate of Probable Cause

[2] Before Congress enacted AEDPA, a party who

wished to appeal a district court's denial of a petition for habeas

corpus was required to obtain a CPC, as Petitioner did in this

case. To obtain a CPC, a petitioner was required to make a

"substantial showing of the denial of [a] federal right.”

5

Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (citation and |

internal quotation marks omitted). If a petitioner made such a

showing as to any issue in his petition, then all the issues in the

petition could be appealed. See Chacon v. Wood, 36 F.3d 1459,

1467 (9th Cir. 1994).

Congress changed that requirement with the passage

of AEDPA, substituting the certificate of appealability (COA)

for the CPC. Unlike a CPC, which allows a party to appeal an

entire petition, a COA is granted on an issue-by-issue basis. A

petitioner specifically must request a COA as to each issue that

he or she wishes to appeal, and a court may not consider on

appeal any issue not specified in a COA. See 28 U.S.C. §

2253(c); Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir. 1999).

Before Slack v. McDaniel, the rule in this circuit was

that the new requirement of a COA did not apply in cases that

were filed in the district court before the effective date of

AEDPA. See, e.g., Fuller v. Roe, 182 F.3d 699, 702-03 (9th

Cir. 1999) (as amended). Thus, a petitioner who filed a petition

for habeas corpus before AEDPA was required in this circuit to

obtain a CPC, not a COA, even if the petitioner filed his or her

notice of appeal after AEDPA.

However, Slack overruled circuit law on this issue.

See Slack, 120 S. Ct. at 1603. In Slack, the Supreme Court held -

that, because the petitioner had sought appellate review after

AEDPA's effective date, the provisions of AEDPA his appeal,

even though he had filed his petition before AEDPA took

effect. Specifically, the requirement for a COA -- nota CPC --

applied. See id.

[3] Under Slack, then, Petitioner was required to

obtain an issue-by-issue COA. Through no fault of his own, he

obtained a CPC instead. In cases in which Slack has had this

effect, we treat the petitioner's notice of appeal as a request for

a COA on the issues raised in the briefs, and we grant a COA

on those issues as to which the petitioner has made the requisite

"substantial showing of the denial of a constitutional right."

Schell v. Witek, 218 F.3d 1017, 1021 n.4 (Sth Cir. 2000).

Under that new procedure, we turn to the claims that

Petitioner raises on appeal. As noted, Petitioner raised 43

6

claims in his petition, all of which the district court denied.

Petitioner does not present to this court any argument

concerning a number of those claims. Petitioner has abandoned

those claims that he does not address in his briefs. See Poland

v. Stewart, 169 F.3d 573, 590 (9th Cir. 1999) (as amended).

The claims on which Petitioner does seek a COA fall

into two categories: claims that were denied on the merits, and

claims that were denied on procedural grounds.

A. Claims that the District Court Denied on the Merits

[4] Weconclude that Petitioner has made a substantial

showing of the denial of a constitutional right as to the

following issues, which the district court resolved on the merits:

(1) whether the trial court's comments to the jury violated

Caldwell v. Mississippi, 472 U.S. 320 (1985), as alleged in

Claim 24; (2) whether the district court's guilt-phase instruction

concerning accomplice liability denied Petitioner a fair trial, as

alleged in Claim 14; (3) whether Avette Barrett's and Allison

Eckstrom's plea agreements were unduly coercive, as alleged in

Claims 1 and 2; and (4) whether Special Instruction 60, which

the district court gave during the penalty phase, denied

Petitioner a fair trial, as alleged in Claims 36 and 40.

[5] We hereby grant a COA as to those issues.

B. Claims that the District Court Dismissed on Procedural

Grounds

1. In his briefs to this court, Petitioner combines that argument

with an argument that the state improperly "vouched" for Barrett and

Eckstrom, both in the plea agreements themselves and at trial. Petitioner did

not present that "vouching" argument in state court or in district court.

Accordingly, the argument is unexhausted and unpreserved, and we will not

consider it on appeal. We write only to make clear that Petitioner's

arguments about vouching are not included in the COA, even though we

grant a COA on the question whether the plea agreements were unduly

coercive. ,

7

[6] In Slack, the Court set out a two-step analysis for

deciding whether to grant a COA when a district court "denies

a habeas petition on procedural grounds without reaching the

prisoner's underlying constitutional claim." Slack, 120 S. Ct. at

1604. In those circumstances, a COA should issue if the

_ prisoner can show: (1) "that jurists of reason would find it

debatable whether the district court was correct in its procedural

ruling"; and (2) "that jurists of reason would find it

debatable whether the petition states a valid claim of the denial

of a constitutional right." Jd.

Here, Petitioner appeals the district court's dismissal,

on procedural grounds, of all or part of Claims 8, 17, 37, and

38. In determining whether to grant a COA on those claims, we

apply the two-step analysis from Slack.

(7] First, we consider whether the district court's

procedural ruling was debatable among jurists of reason. We

conclude that it was. The district court dismissed the claims on

the ground that they previously had been denied by the

California Supreme Court on an independent and adequate

state-law ground. In a federal habeas action brought by a state

prisoner under 28 U.S.C. § 2254, a federal court "will not

review a question of federal law decided by a state court if the

decision of that court rests on a state law ground that is

independent of the federal question and adequate to support the

judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991).

[8] In this case, the California Supreme Court had

denied Petitioner's second state-court petition because it was

untimely under the holding of Clark, 855 P.2d at 737-40. The

district court concluded that the California Supreme Court's

"untimeliness" decision rested on an “independent and

adequate” state-law ground and denied those claims (which

Petitioner also had presented in the second state-court petition)

on that basis. However, this court has held that the

"untimeliness" bar from Clark is not an independent and

adequate state-law ground. See La Crosse v. Kernan, 211 F.3d

8

468, 474 (9th Cir. 2000).” Accordingly, the California Supreme

Court's denial, under Clark, of Defendant's second state habeas

petition does not bar federal review of claims raised in that

petition. See id. The district court's holding that all or parts of

claims 8, 17, 37, and 38 are procedurally barred, then, is

incorrect.

[9] Because the district court's procedural ruling was

incorrect, we must issue a COA if "jurists of reason would find

it debatable whether the petition states a valid claim of the

denial of a constitutional right." Slack, 120 S. Ct. at 1604. In

completing that second step of the two-step Slack analysis, we

are guided by this court's recent decision in Lambright v.

Stewart, 220 F.3d 1022 (9th Cir. 2000). Under Lambright, our

task is "simply [to] take a quick look at the face of the

complaint to determine whether the petitioner has facially

allege[d] the denial of a constitutional right." Id. at 1026

(citations and internal quotation marks omitted). Any claims

that satisfy that "modest standard," id. at 1027, must receive a

COA.

[10] We conclude that three of the four procedurally

barred issues that Petitioner raises meet that standard. Those

issues are: (1) whether Petitioner received ineffective assistance

of counsel, as alleged in claim 37; (2) whether Petitioner was

denied a fair trial by the state's erroneous introduction of

excluded evidence, as alleged in Claim 8; and (3) whether

Petitioner was inccmpetent to aid and assist in his own defense,

as alleged in claim 38. ;

[11] We hereby grant a COA as to those issues.

II. Factual Development of Claims that Were Denied

on Procedural Grounds Petitioner argues that he is entitled to

further factual development as to his claims of ineffective

assistance of counsel and incompetence to aid and assist

counsel. In his petition, he requested an evidentiary hearing on

2. The La Crosse panel recently withdrew its opinion, see 2000.

WL 1292718 (9th Cir. Sept. 8, 2000), and has not issued a replacement

opinion. However, we agree with and hereby adopt the reasoning of the

withdrawn opinion with respect to the Clark issue.

9

ae

assistance of counsel and incompetence, but has never received

an evidentiary hearing on those claims. We hold that Petitioner

is entitled to an evidentiary hearing on those claims.2/

We also emphasize that a more developed factual

record with regard to those claims is necessary for meaningful

appellate review. The state argues that the lack of a factual

record is Petitioner's fault and that Petitioner's failure to provide

more factual support for his claims militates against granting an

evidentiary hearing. We agree that a petitioner who negligently

fails to develop the material facts supporting a claim at the

state-court level generally is not entitled to a federal evidentiary

hearing. See Keeney vy. Tamayo-Reyes, 504 U.S. 1, 11 (1992);

Correll v. Stewart, 137 F.3d 1404, 1413 (9th Cir. 1998). But

here, as was the case in Correll and Siripongs, Petitioner did not

receive an evidentiary hearing in state court, either; indeed, his

second state-court petition was denied only five days after it

was filed. Thus, he has not received an evidentiary hearing on

these claims at any level. In the circumstances, we will not

address the merits of Petitioner's claims of incompetence and

ineffective assistance of counsel without giving him an

Opportunity for an evidentiary hearing.

Those claims relate to both the guilt phase and the

penalty phase of Petitioner's trial. Accordingly, a ruling in

Petitioner's favor on either claim would render the rest of his

petition moot. In the interest of judicial economy, we will hold

3. Petitioner does not argue that he is entitled to an evidentiary

hearing as to his claim conceming the state's introduction of excluded

evidence at trial. We agree that an evidentiary hearing on that claim is

unnecessary, because the factual record has been adequately developed.

10

in abeyance the remaining claims as to which we have granted

aCOA, pending the district court's completion ofan evidentiary

hearing on Petitioner's claims of incompetence and ineffective

assistance of counsel. |

The judgment of the district court dismissing the

petition for habeas corpus is VACATED and the case is

REMANDED for an evidentiary hearing on Petitioner's claims

of ineffective assistance of counsel and incompetence to aid and

assist counsel. We DEFER ruling on those claims for which we

have granted a COA, pending the outcome of the district court's

evidentiary hearing. The rulings of the district court granting

summary judgment for the state on Petitioner's remaining

claims are AFFIRMED. This panel shall retain control of the

further proceedings in this case.

11

NOT FOR PUBLICATION

FILED

NOV16 2000

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE WAYNE MORRIS) No. 99-99028

D.C. No.

Petitioner and Appellant, _) CV-92-00483-

) EJG-GGH

v. )

JEANNE WOODFORD, ) ORDER

Acting Warden of )

California State Prison )

at San Quentin, )

)

Respondent and Appellee. )

Before: FERGUSON, GRABER, and W. F LETCHER, Circuit

Judges.

The panel has voted to deny the petition for rehearing.

Judges Graber and W. F letcher have voted to deny the petition

for rehearing en banc, and Judge Ferguson has so

recommended.

The full court has been advised of the petition for

rehearing en banc and no judge of the court has requested a vote

on it.

The petition for rehearing and petition for rehearing en

banc are DENIED.

12

FILED

JUN - 9 1999

CLERK, U.S. DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA

BRUCE MORRIS, CIV. NO. S-92-0483 EJG/GGH P

Petitioner,

DEATH PENALTY CASE

v.

ORDER GRANTING

ARTHUR CALDERON, RESPONDENT'S MOTION

FOR SUMMARY

Respondent. JUDGMENT AND DENYING

PETITION FOR WRIT OF

HABEAS CORPUS

/

Petitioner, a state prisoner under sentence of death, has

filed a petition for a writ of habeas corpus pursuant to 18

U.S.C. § 2254. Respondent has filed a motion for summary

judgment, seeking summary adjudication of each of petitioner's

claims. The case was referred to Magistrate Judge Gregory G.

Hollows pursuant to 28 U.S.C. § 636 and Local Rule 72-

302(c)(17). The magistrate judge issued his findings and

recommendations in three parts. On March 3, 1998 he issued

his findings with respect to claims 36 (in part) and 40, relating

to an erroneous jury instruction. On August 4, 1998, he issued

his findings and recommendations with respect to all other

claims. On November 12, 1998, he issued an order and

supplemental findings and recommendations in response to

respondent's contention that Chapter 159 of the AEDPA applied

to this action. Respondent filed objections to the March 3, 1998

findings and to the November 12, 1998 supplemental findings.

In addition, he seeks reconsideration of the November 12, 1998

order. Petitioner filed objections to the August 4, 1998 findings.

13

DISCUSSION

A. Claims 36 (in part) & 40 (March 3, [998 findings)

In these claims petitioner contends his sentence of death

was unlawfully imposed, in violation of the fifth,'sixth and

eighth amendments of the United States Constitution as the

result of an erroneous jury instruction given during the penalty

phase, which error was magnified by the trial court's failure to

. : I/

1. Claim 36 also alleges that the court's inquiry into the jury's

numerical division at the 22 time of the question was constitutionally

impermissible. This issue was addressed in the magistrate judge's August 4,

1998 findings.

14

heard more than 50 times during the course of the trial that the

two sentencing options were either death or life without

possibility of parole, and after having been correctly read the

instructions concerning the two choices, the jurors were given

a written instruction that contained a typographicai error

concerning the penalty to be imposed.” The language in the

instruction contradicted not only the 50 previous references and

the court's oral recitation, but the only two sentencing options

provided on the verdict forms as well. When the trial judge,in

response to a jury request to explain the instruction, told the

jurors the instruction was self-explanatory, he compounded the

error.” Petitioner argues that the instruction and the judge's

response misled the jury about its sentencing choice, in

violation of petitioner's constitutional rights.

The California Supreme Court, relying on United States

Supreme Court precedent, held that the typographical error did

not violate petitioner's constitutional rights."Focusing on the

specific language of the erroneous instruction as a reasonable

juror would, and considering the context of defendant's trial ...

we conclude that there was no ‘reasonable likelihood’ the jury

inferred that defendant might receive parole if he were not

sentenced to death." People v. Morris, 53 Cal.3d 152, 231

(1991), overruled on other grounds, People v. Stansbury, 9 —

Cal.4th 824, 830 n.1(1995).The court went on to find that to the

extent there was any error during the penalty phase it was

harmless beyond a reasonable doubt. See Chapman _v.

California, 386 U.S. 18, 24 (1967).

The magistrate judge disagrees with the California

Supreme Court and, citing McDowell v. Calderon, 130 F.3d

833 (9th Cir. 1997) as controlling law, finds the jury instruction,

2. The instruction as given to the jury stated as follows: "If you

have a reasonable doubt as 24 to which penalty to impose, death or life in

prison without the possibility of parole, you must give the defendant the

benefit of that doubt and return a verdict fixing the penalty of life in prison

25 with the possibility of parole." (emphasis added).

3. As explained by the magistrate judge, the typographical error

was inadvertent, noticed 25 neither by the court or the parties.

15

substantial and injurious effect on the jury's verdict. See Brecht

v. Abrahamson, 507 U.S. 619, 638(1993).

1. Did constitutional error occur?

a titutional error occur?

constitutional right to have mitigation evidence considered.

Second, the McDowell] court wrongly assumed, as did the

drafting the question the other eleven members of the jury

were, in effect, asking the judge whether there was evidence of

all of those circumstances in the record. Rather than tell the jury

which specific circumstances were supported by evidence and

16

which were not, the judge elected to have the jurors re-read his

previous instruction) which told them they could consider any

aspect of defendant's character or background that he offered as

a basis for a lesser sentence. Arguably, the judge elected the

latter course because he did not want to say anything which

could be construed as coercion, given the jury's announcement

of its 11-1 stand for death.

Likewise, in the instant case, the magistrate judge focuses

on a single interpretation of the jury's question and finds that

"the only logical reason to ask a question about the instruction

was the very fact that references inconsistent with the

possibility of parole had been made." March 3, 1998 findings,

7:10-12. However, this obviates completely the Supreme

Court's review of the totality of the trial. Unlike McDowell, the

jury here did not indicate a specific concern with the

instruction. It merely asked for an explanation. "The reason for

its inquiry may or may not have been the typographical error.

No juror expressed on the record any belief or concern that

defendant might receive parole. The generally phrased request

for an explanation did not necessarily signify that jurors

espoused any particular belief as to sentencing options." People

v. Morris,

953 Cal.3d at 229.

Moreover, the jury did not return with a follow-up

question, which would have been evidence of juror confusion.

Given that jurors are presumed to follow the law as it was

correctly read and recited to them throughout the trial, the

assumption must be that, having re-read the instruction, as

directed by the judge; having looked at the verdict forms, which

offered only two possible penalties -- death and life without

possibility of parole; and, having reflected on the instruction in

the context of all the other instructions, the jurors, through their

collective debate and discussion, reached the inevitable

conclusion that the instruction contained a typographical error.

Cf. California v. Brown, 479 U.S. 538, 541 (1987) (challenged

instruction cannot be viewed in isolation; court must "review

the instructions as a whole to see if the entire charge delivered

a correct interpretation of the law."); People v. Cruz, 871 E.2d

17

101, 103 (9t' Cir. 1989) (typographical error in instruction

which made it "incoherent and useless" did not prejudice

defendant in light of other instructions).!

2. Was the error harmless?

Finally, even if the mistyped instruction and the judge's

failure to correct the instruction created constitutional error, the

error was harmless. "A constitutionally deficient jury

instruction is a trial-type error that is subject to harmless error

analysis." Hanna v. Riveland, 87 F.3d 1034, 1938 (9"" Cir,

1996). A federal court collaterally reviewing a state court

conviction can grant relief based on trial error only when that

error "‘had substantial and injurious effect or influence in

determining the jury's verdict."" Brecht v. Abrahamson, 507

USS. at 637 (quoting Kotteakos v. United States, 328 U.S. 750,

776 (1946)). If the court, after reviewing the record, has a grave

doubt about whether the error is harmless, it should treat it as if

it affected the verdict. O'Neal v. McAninch, 115 S.Ct. 992, 994

(1995).

As the Supreme Court recently noted, this standard takes

into account the presumption of finality and legality to be

accorded a conviction after direct appeal as well as preservation

of the extraordinary remedy of habeas corpus for those

situations where it is truly warranted. Calderon v. Coleman, 119

S.Ct. 500, 503 (1998)."A federal court upsets this careful

balance when it sets aside a state court conviction or sentence

4. The court does not Suggest that either the Ninth Circuit or

Magistrate Judge Hollows are short-sited. The reasons they chose an

interpretation which favored the defendant may well have been mandated by

precedent. "That reasonable men might derive a meaning from the

instructions given[,} other than the proper meaning .. . is probable. In death

cases doubts such as those presented here should be resolved in favor of the

accused." Andres v. United States, 333 U.S. 740, 752 (1948). However,

thorough consideration should have been given to other plausible

interpretations before they were rejected, something neither the Ninth

Circuit in McDowell nor Magistrate Judge Hollows in the instant case

appear to have undertaken.

18

without first determining that the error had a substantial and

injurious effect on the jury's verdict." Id.

Analysis of harmless error under the Brecht/O0'Neal

standard is a three step process. "The federal habeas court must

(1) evaluate the error in the context of the entire record;(2) ask

whether the constitutional trial error at issue had a ‘substantial

and injurious effect or influence in determining the jury's

verdict’; and (3)if the habeas court ‘is in grave doubt as to the

harmlessness of the error that affects substantial rights, it should

grant relief."" Mangus v. Edwards, 1999 WL 166969 *13 (N.D.

Ohio, filed March 15, 1999) (internal citations omitted).

Here, the magistrate judge did not engage in this analysis,

or, if he did so, it was only by implicit adoption of McDowell:

"If McDowell is to be followed, the error seriously affected the

fairness and integrity of the judicial proceedings." March 3,

1998 findings, 13:12-13. This does not satisfy the

Brecht/O'Neal test. Moreover, to the extent the magistrate

judge relies upon McDowell's harmless error analysis, which in

turn utilized the "reasonable likelihood" language of Boyde v.

California to find the error harmful, his reliance is misplaced.

The Supreme Court has recently cast doubt on the Ninth

Circuit's use of Boyde to determine harmless error, thus

seriously undercutting the import of McDowell. In McDowell

the court looked to Boyde for guidance in determining whether

harmless error had occurred. Specifically, the Ninth Circuit

utilized Boyde's language and held that if" there is areasonable

likelihood the jury applied the challenged instruction in a way

that prevents consideration of constitutionally relevant

evidence,' the error necessarily satisfies the Brecht test for

substantial and injurious error." McDowell, 130 F.3d at 838

(quoting Boyde v. California, 494 U.S. 370, 380 (1990)).

However, a year later, the Supreme Court criticized the

Ninth Circuit's utilization of Bo de for this purpose.

The Boyde test that the Court of Appeals applied

instead is not a harmless-error test at a-ll. It is, rather,

the test for determining, in the first instance whether

constitutional error occurred when the jury was given

an ambiguous instruction that it might have

19

interpreted to prevent consideration of

constitutionally relevant evidence.

Although the Boyde test for constitutional error, like

the Brecht harmless-error test, furthers the ‘strong

policy against retrials years after the first trial where

the claimed error amounts to no more than

speculation’ . . . it is not a substitute for the Brecht

harmless-error test.

Calderon v. Coleman, 119 S.Ct. 500, 503 (1998) (emphasis

added).

On de novo review this court does not reach the same

conclusion as the :magistrate judge. Because of the numerous

references to the correct sentencing choices throughout the trial,

the error, evaluated as but a part of the whole, does not

transcend all that came before it. It simply did not have a

substantial or injurious effect or influence on the jury's death

verdict in the manner espoused by the magistrate judge. The

record, viewed in totality, does not allow such a conclusion.”

B. Remainder of claims (August 4, 1998 findings)

5. Petitioner himself concurs in this assessment. In a letter written

to the magistrate judge after receipt of the March 3, 1998 findings, petitioner

implores him to withdraw his recommendation on the jury instruction claim.

I feel that you should know that from the start of my jury selection the jury

was told that should I be found guilty of murder and the special

circumstances [sic] was found to be true, that they could only come back

with either a sentence of Death or Life-without-the possibility of parole.

They knew their choices! and they came back with a sentence of Death!

They knew that there was an error in the instructions! and the judge was

tired of stating the same thing over and over again! I never counted the

number of times they were instructed with regards to the sentence! The

judge did however want them to be clear of the out come [sic]." Letter dated

July 22, 1998, attached to Doc. No. 142.

Although the magistrate judge mentions petitioner's letter, he elects

not to consider it. Neither will this court. Nonetheless, it will be

acknowledged as a fitting conclusion to the court's ruling on this claim.

20

The court has conducted an exhaustive de novo review and

finds the magistrate judge's August 4, 1998 findings to be

supported by the record and by proper analysis. Accordingly,

the- court adopts the August 4, 1998 findings and

recommendations, denying petitioner's remaining claims.

C. Chapter 154's applicability (November 12, 1998

supplemental findings and order)

Based on the foregoing, it is unnecessary to resolve the

_ applicability of Chapter 154 of the AEDPA. Even under pre-

AEDPA standards where less deference is accorded the state

supreme court's review on direct appeal, the writ must be

DENIED.

21

SUMMARY

1. Respondent's motion for summary judgment is

GRANTED.

2. The petition for a writ of habeas corpus is DENIED.

IT IS SO ORDERED.

Dated: June 3 ,1999

s/ EDWARD J. GARCIA

EDWARD J. GARCIA, JUDGE

UNITED STATES DISTRICT COURT

22

United States District Court for the

Eastern District of California

June 4, 1999

* * CERTIFICATE OF SERVICE * *

2:92-cv-00483

Morris

Vv.

Vasquez

I, the undersigned, hereby certify that I am an employee in the

Office of the Clerk, U.S. District Court, Eastern District of

California.

That on June 4, 1999, I SERVED a true and correct copy(ies)

of the attached, by placing said copy(ies) in a postage paid

envelope addressed to the persons) hereinafter listed, by

depositing said envelope in the U.S. Mail, by placing said

copy(ies) into an inter-office delivery receptacle located in the

Clerk's office, or, pursuant to prior authorization by counsel, via

facsimile.

Michael G Millman LCS/EJG

California Appellate Project

One Ecker Place VC/GGH

Suite 400

San Francisco, CA 94105-2752

Marianne D Bachers

Law Offices of Marianne D Bachers

312 Montcalm Avenue

San Francisco, CA 94110

Arthur Ruthenbeck

Federal Defender

801 K Street

Suite 1024

Sacramento, CA 95814

Tony Tamburello

Tamburello Hanlon and Waggener

214 Duboce Avenue

San Francisco, CA 94103

24

FILED

MAY 27 1997

CLERK, U.S DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BRUCE WAYNE MORRIS,

Petitioner, No. CIV S-92-0483

vs. EJG GGH P

ARTHUR CALDERON, FINDINGS AND

RECOMMENDATIONS

Respondent.

DEATH PENALTY CASE

/

I. Introduction and Summary

Respondent's motion for summary judgment, filed

May 15, 1996, came on for hearing March 12, 1997, before the

undersigned.” Tony Tamburrello and Marianne Bachers

appeared for petitioner. Ward Campbell appeared for

respondent.

In the summary judgment motion, respondent argues

that all of the claims raised in petitioner's second petition for

writ of habeas filed in the California Supreme Court are

procedurally barred in the instant action. Respondent also

argues that several other claims raised in petitioner's state

1. Respondent filed the summary judgment motion on May 15,

1996. Pursuant to the January 11, 1996, scheduling order, petitioner's

opposition was due sixty days thereafter. On August 8, 1996, the court

granted petitioner's request for an extension of time to August 15, 1996, to

file the opposition. At a hearing held September 12, 1996, the court granted

petitioner until September 26, 1996, to file the opposition. On November

8, 1996, the court ordered petitioner's counsel to show cause for the failure

to file an opposition. On November 19, 1996, petitioner filed the opposition.

25

appeal are procedurally barred because the California Supreme

Court rejected them because of petitioner's failure to object at

trial. Respondent also argues that several claims are not

exhausted. In these findings and recommendations, the court

will address these threshold |

arguments. The court will issue separate findings and

recommendations addressing respondent's arguments going to

the substantive merits of petitioner's claims.

The most difficult issue herein is that issue dealing

with the timeliness bar asserted as to numerous claims. This

court reconfirms its previous opinions, affirmed by the Ninth

Circuit,” which hold that if an alleged default commenced prior

to the California Supreme Court’s decision in In re Clark, 5

Cal.4th 750, 21 Cal.Rptr. 2d 509 (1993), the stated timeliness

bar is insufficient for purposes of a federal finding of

procedural default.” However, a separate and distinguishable

default occurred post-Clark--petitioner’s two year delay in

seeking to exhaust claims that this court had ordered exhausted.

This court now finds that this post-Clark procedural default

precludes adjudication on the merits of specified “timeliness”

defaulted claims in this federal habeas action.

The court also finds that the procedural default based

on grounds other than timeliness should be found in part and

denied in part. Finally, petitioner’s belated attempt to bring

new claims in his post-exhaustion petition, which were never

presented to the California Supreme Court, requires that the

new claims be stricken.

II. Background

On June 22, 1987, a jury convicted petitioner of the

murder of Rickey Van Zandt. Petitioner was sentenced to

death for this murder. On March 28, 1991, the California

Supreme Court affirmed petitioner's conviction on appeal, and

2. Calderon v. U.S.D.C. E.D. Cal. (Bean), 96 F.3d 1126 (9th Cir.

1996); Calderon v. U.S.D.C. E.D. Cal. (Hayes), 103 F.3d 72 (9th Cir. 1996).

3. The court will use the terms “procedural default” and

“procedural bar” interchangeably.

26

denied a petition for rehearing. People v. Morris, 53 Cal.3d 152

(1991). Justices Mosk and Broussard filed separate opinions

dissenting from the affirmance of the guilt and penalty

judgments. On November 12, 1991, the United States Supreme

Court denied petitioner's petition for writ of certiorari. Morris

v. California, 502 U.S. 959, 112 S.Ct. 421 (1991).

On September 7, 1990, the first state petition for writ

of habeas corpus was filed on petitioner's behalf in the

California Supreme Court. The California Supreme Court

denied the petition on the merits and without comment on

December 13, 1990.

On March 27, 1992, petitioner filed a petition for writ

of habeas corpus in this court. On August 12, 1992, counsel

was appointed to represent petitioner. On June 15, 1993, an

amended petition for writ of habeas corpus was filed. On

December 6, 1993, the court issued an order staying the case to

allow petitioner to exhaust his state remedies.

On December 1, 1995, petitioner filed a second

petition for writ of habeas corpus in the California Supreme

Court. On December 6, 1995, the California Supreme Court

denied the petition on the merits and, alternatively, on the

procedural ground that the petition was successive and delayed.

The order stated as follows (see order denying petition lodged

in this court on May 20, 1996):

The petition for writ of habeas corpus, filed

December 1, 1995, is denied. All claims are based on

information that was long known or should have been

known to petitioner or his counsel and could have

been raised in petitioner's earlier habeas corpus

petition; petitioner fails to allege with particularity

any fact not earlier known to petitioner. No sufficient

justification has been offered to explain the delay or

the successive petition, and no fundamental

miscarriage of justice has been demonstrated to

4. The issues contained in the first state habeas petition are either

not involved in the procedural default section herein, or were affirmatively

barred for failure to object at trial on direct appeal.

a7

excuse either. (See Supreme Court Policies

Regarding Cases Arising From Judgments of Death,

std. 1-1.2; In re Clark (1993) 5 Cal.4th 750, 767-782

[successive petition], 783-787 [delay], 797-98

[exceptions]. Accordingly, the petition is denied as

untimely. It is also denied on the merits. (See Harris

v. Reed (1989) 489 U.S. 255, 264, fn. 10.)

On January 17, 1996, petitioner filed a first amended

petition for writ of habeas corpus in this court.

Because it is an affirmative defense and because

respondents move for dismissal, respondents bear the burden of

establishing that California's procedural default rules are

adequate to bar federal review. Karis v. Vasquez, 828 F.Supp.

1449, 1463 n. 21 (E.D.Cal. 1993). However, in the event the

procedural default is otherwise properly applied, petitioner has

the burden to demonstrate cause/prejudice or a miscarriage of

justice if the bar is finally to be avoided.

III. Procedural Default

A. Legal Standards

Based on concerns of comity and federalism, federal

courts will not review federal questions presented by a habeas

petition if a prior state court decision denying relief to the

petitioner rests on a state procedural rule that is independent of

federal law and adequate to support the judgment. Coleman v.

Thompson, 501 U.S. 722, 111 S.Ct. 2546 (1991); Harris v.

Reed, 489 U.S. 255, 109 S.Ct. 1038 (1989). A federal court

faced with an ambiguous state court decision presumes that

there is no bar to the federal court's consideration of federal

claims; procedural bar will not be applied "unless the last state

court rendering a judgment on the case clearly and expressly

States that its judgment rests on a state procedural bar." Harris

v. Reed, 489 U.S. at 263, 109 S.Ct. at 1043 (citations omitted).

Federal questions should be reached only when it "fairly

appears that a state court judgment rested primarily on federal

law or was interwoven with federal law, that is, in those cases

28

where a federal court has good reason to question whether there

is an independent and adequate state ground for that decision."

Coleman at 735, 111 S.Ct. at 2556.

To be independent of federal law, a state procedural

practice must not "depend upon an antecedent determination of

federal law." Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.

1992). To be adequate, a state procedural practice must be

"clearly defined," id. at 1462, "firmly established," James v.

Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 1835-1836

(1984), and "regularly followed," Id. A rule is regularly

followed if it is applied in "the vast majority of cases." Dugger

v. Adams, 489 U.S. 401, 410 n. 6, 109 S.Ct. 1211, 1217 (1989).

The Ninth Circuit has explained the adequate state ground

requirement as follows:

[T]he procedural default is not "adequate" if the state

courts themselves bypass the petitioner's default and

consider his claims on the merits, if the procedural

rule appears to be discretionary, or, ordinarily, if the

state fails to assert an interest in compliance with its

procedural rules in the petitioner's federal habeas

proceedings.

Harmon, 959 F.2d at 1461 (citations omitted).

However, as long as the state court has identified as

an alternative ground for denying a claim, an independent and

adequate state ground, it is of no dispositive significance that

the state court reached the merits also. Harris v. Reed, 489 U.S.

at 264 (n.10), 109 S.Ct. at 1044.

If the state court decision is supported by an

independent and adequate state ground, the federal court may

still consider the claim if the petitioner demonstrates: (1) cause

for the default and actual prejudice resulting from the alleged

violation of federal law, or (2) a fundamental miscarriage of

justice. Harris, 489 U.S. at 262, 109 S.Ct. at 1043 (citing

Murray v. Carrier, 477 U.S. 478, 485, 495, 106 S.Ct. 2639,

2644 (1986)). [T]he existence of cause for a procedural

default must ordinarily turn on whether the prisoner can show

that some objective factor external to the defense impeded

counsel's efforts to comply with the State's procedural rule.”

29

Mcfleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454,

1469-1470 (1991) (quoting Murray, 477 USS. at 488).

Examples of cause include showings "that the factual or legal

basis for a claim was not reasonably available to counsel," "that

some interference by officials made compliance impracticable,"

or "of ineffective assistance of counsel." Murray, 477 U.S. at

488, 106 S.Ct. at 2645.

In order to establish a "fundamental miscarriage of

justice" a petitioner must show that a “constitutional violation

has probably resulted in the conviction of one who is actually

innocent.” Schlup v. Delo, 115 S.Ct. 851, 867 (1995), quating

Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649-2650.

“To establish the requisite probability, the petitioner must show

that it is more likely than not that no reasonable juror would

have convicted him in light of the new evidence,” Schlup, 115

S.Ct. at 867. This standard is intended to focus the inquiry on

actual innocence. Id. In aclaim challenging actual innocence

of the death penalty, the petitioner must show that it is more

likely than not that no reasonable juror would have found

petitioner eligible for the death penalty. Id. at 865.

B. Procedural Default: Second State Habeas Petition

(Timeliness)

1. Claims at Issue

As stated above, in the portion of the motion setting

forth the procedural default standards, respondent generally

asserts that all claims raised in the second habeas petition are

procedurally defaulted because they were not timely raised.

However, clearly not every claim is procedurally defaulted as

some of these claims were raised in earlier state proceedings

and denied on the merits. As the undersigned has stated on

several occasions, a petitioner cannot be punished in federal

court for “exhausting too much” in state court. While the state

court can certainly bar its review of a successive claim, any

claim that had been timely presented in an earlier state

appeal/petition, and whose merits were ruled upon at that time

30

by the state supreme court are correctly presented in a federal

petition regardless of later actions by the state supreme court on

the same claim.

In the portion of the motion addressing the claims

individually, respondent later identifies four specific claims

raised in the second amended petition which he alleges were not

timely raised: VIII, XVII, XXXVII and XXXVIII. However,

some of these claims contain several elements, not al! of which

respondent appears to argue were procedurally defaulted.

Accordingly, the court will now set forth the specific portions

of these claims which respondent argues are procedurally

defaulted.

Claim VIII alleges that prejudicial evidence that the

trial court had excluded was admitted at trial in violation of due

process. In particular, petitioner claims that the prosecutor

introduced evidence of petitioner's taped statement to Nebraska

authorities, which the trial court had ruled inadmissible. The

judge then admonished the jury. Claim VIII contains the

following subparts: 1) the treatment of this issue by the state

supreme court amounts to a denial of due process because the

supreme court improperly altered the theories upon which the

admissibility of the evidence at trial was adjudicated; 2) the

admission of this evidence deprived petitioner of a fair trial in

violation of due process; 3) trial counsel was ineffective in

failing to ensure that this evidence was not admitted. It appears

that respondent is now arguing that the first element, i.e.

altering of theories of admissibility by the California Supreme

Court, is procedurally defaulted. See Summary Judgment

Motion, p. 85:1-16.

Claim XVII alleges that petitioner was deprived of

his right to a unanimous jury determination on whether he

premeditated and deliberated the homicide. This claim contains

no subparts. Therefore, respondent's procedural default

argument is directed to the entire claim.

Claim XXXVII alleges the ineffective assistance of

trial and appellate counsel. In particular, petitioner alleges the

following individual claims of ineffective assistance of trial

counsel:

31

A. Counsel failed to challenge for cause jurors

‘ whose bias was unquestionably shown and to

exercise peremptory challenges against these jurors.

B. Counsel failed to investigate evidence concerning

petitioner's background and upbringing and present it

at both phases of his capital trial.

C. Counsel failed to investigate and present

background evidence concerning Avette Barrett and

Allison Eckstrom.

D. Counsel failed to investigate and present

background evidence concerning jailhouse

informants Wharton, Weaver and Anthony Brooks.

E. Counsel failed to investigate and present

background evidence concerning Ricky Van Zandt.

F. Counsel failed to investigate and challenge the ©

forensic evidence the prosecution presented at trial by

consulting with appropriate defense experts and

challenging the conclusions at trial of the forensic

experts.

G. Counsel failed to investigate and present

additional available mental state evidence at both

phases of petitioner's capital trial despite receiving

early and repeated indications of petitioner's lengthy

history of organic brain damage, losses of

consciousness and familial history.

H. Counsel failed to adequately investigate

petitioner's competency to stand trial and to aid and

assist in his defense at trial and on appeal. Counsel

failed to seek a hearing on petitioner's competency.

I. Counsel failed to investigate the effect of

petitioner's drug use on his mental state at the time of

the alleged homicide.

J. Counsel Shattuck's failing health materially

interfered with his ability to zealously defend

petitioner.

K. Counsel did not investigate the constitutional

validity of petitioner's prior convictions and

nonetheless stipulated to their admissibility.

32

L. Counsel failed to object to the admissibility of

excludable evidence, to seek the admission of

favorable evidence, to consult with necessary and

appropriate experts, and to formulate and submit

appropriate instructions at both phases of trial.

M. Counsel's failure to investigate or present

additional available mental state and other mitigation

evidence at penalty phase deprived petitioner of

mitigating evidence that would have provided the

jury with strong mitigating factors on which to base

a life verdict.

N. Counsel failed to uncover and challenge the

conflicts of interest suffered by the Sierra County

District Attorney's Office, which gave immunity to

Barrett and Eckstrom, and to seek its removal as the

prosecuting agency.

O. Counsel failed to investigate the capital charging

policies of the Sierra County District Attorney's

Office and to discover that those policies were

arbitrary and capricious and violated constitutional

standards.

Finally, petitioner alleges that appellate counsel was

ineffective for failing to investigate and present evidence of the

matters listed above. (Para.P.)

After reviewing the record, it appears that respondent

is arguing that all of the ineffective assistance of counsel claims

listed above are defaulted.

In Claim XXXVIII, petitioner argues that his

constitutional rights were violated because he was tried and had

his automatic appeal denied while he was incompetent to aid

and assist in his defense. Petitioner also argues that he was

incompetent to waive his various

constitutional rights. It appears that respondent is claiming that

this entire claim is procedurally defaulted.

Accordingly, having determined which particular

claims raised in the second state habeas petition respondent is

specifically claiming are procedurally barred, the court turns to

33

its analysis.

2. Analysis

Respondent generally argues that the four claims

listed above are procedurally barred because of petitioner's

failure to timely raise them. See Motion for Summary

Judgment, p. 29:20-23. Respondent's argument rests primarily

on the California Supreme Court's citation to In re Clark in its

order denying the second habeas petition. Respondent's

argument implicates two separate claims for procedural default

based on the failure to timely raise these claims: 1) failure to

raise these claims in the first habeas petition (pre-Clark), and 2)

failure to timely exhaust these claims following this court's stay

of this action on December 6, 1993 (post-Clark) . The court

will first address whether the failure to raise these claims in the

first state habeas petition constitutes an adequate procedural

bar.

Pre-Clark Default: Failure to Raise Claims in First

State Habeas Petition

The California Supreme Court, citing In re Clark, 5

Cal.4th 750, 21 Cal.Rptr.2d 509 (1993), and California Death

Penalty Standard 1-1.2, denied the second habeas petition on

procedural grounds. A brief review of the history of the

California courts’ timeliness bar is instructive in determining ~

this basis for the court's ruling. The California courts have

generally disfavored unduly delayed petitions. See, e.g., People

v. Jackson, 10 Cal.3d 265, 110 Cal.Rptr. 142 (1973); In re

Saunders, 2 Cal.3d 1033, 88 Cal.Rptr. 633 (1970). However,

the early cases provided little guidance as to just what

constituted undue delay or what would excuse a finding of

undue delay. In re Stankewitz, 40 Cal.3d 391, 396-97 n. 1, 220

Cal.Rptr. 302 (1986), held that a petitioner must "pcint to

particular circumstances sufficient to justify substantial delay.”

However, the court did not define how much delay was

"substantial."

In 1989, the California Supreme Court established

34

standards, including timeliness standards, for filing habeas

corpus petitions in capital cases. The standards, officially

called ee

Petitions Relati apital For

Connuilia Chanecion ei Sheena in effect at the time of

petitioner's first habeas petition (1990) are set forth in Morales

v. Calderon, 85 F.3d 1387, 1390 (9th Cir. 1996):

1. Timeliness Standards

1-2. Appellate counsel in capital cases shall have a

duty to investigate factual and legal grounds for the

filing of a petition for a writ of habeas corpus. All

petitions for writs of habeas corpus should be filed

without substantial delay.

1-1.1. A petition for a writ of habeas corpus will be

presumed to be filed without substantial delay if it is

filed within 60 days after the final due date for the

filing of appellant's reply brief on the direct appeal.

1-1.2. A petition filed more than 60 days after the |

final due date for the filing of appellant's reply brief |

on the direct appeal may establish absence of

substantial delay if it alleges with specificity facts

showing the petition was filed within a reasonable

time after petitioner or counsel became aware of

information indicating a factual basis for the claim

and became aware, or should have become aware, of

the legal basis for the claim. !

1-1.3. Alternatively, a petition may establish absence

of substantial delay if it alleges with specificity facts

showing that although petitioner or counsel was

aware of the factual and legal bases for the claim

before January 16, 1986 (the date of finality of In re

Stankewitz (1985) 40 Cal.3d 391, 396-397 fn. 1, 220

Cal.Rptr. 382, 708 P.2d 1260), the petition was filed

within a reasonable time after that date.

35

1-2, Ifa petition is filed after substantial delay, the

petitioner must demonstrate good cause for the delay.

A petitioner may establish good cause by showing

particular circumstances sufficient to justify

substantial delay. :

1-2. Any petition that fails to comply with these

requirements may be denied as untimely.

In 1993, the California Supreme Court further

clarified its timeliness rules and set forth specific exceptions to

the timeliness bar. In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d

509 (1993). The court reviewed the state procedural limitations

applicable to petitions for habeas corpus, including the rules

applicable to delayed petitions, repeated petitions, and

piecemeal presentation of claims. In describing prior state

practice limiting habeas corpus relief, the court stated:

"because no clear guidelines have emerged in our past cases, we

consider when departure from those rules is warranted." Id. at

763.

A litigant must have a fair opportunity to comply with

known procedural rules. In order to provide this fair

opportunity, the state procedural bar at issue is the one in place

at the time the claim should have been raised. F ord v. Georgia,

498 U.S. 411, 424, 111 S.Ct. 850, 857 ( 1991). In Ford, the state

Supreme court had established a new procedural rule governing

the timely assertion of a Batson claim. The state court then

retroactively applied the new rule to bar the petitioner's Batson

claim. The Supreme Court found that since the rule was not

firmly established at the time the claim should have raised the

claim, it was inadequate to bar federal review. 498 U.S. at 424-

25. This circuit, citing Ford, has acknowledged that the

applicable procedural bar to consider is the one in effect "at the

time of the petitioner's purported default." Wells v. Maass, 28

F.3d 1005, 1010 (9th Cir. 1994).

The California Supreme Court cited Clark in the

instant case as a bar to petitioner's second habeas petition. In

doing so, the Court retroactively applied Clark because, by

36

definition, the timeliness bar means petitioner should have

raised the claims earlier. The problem is that, although

petitioner filed the second state petition at issue in this case

after Clark, the time at which petitioner should have raised the

claims, i.e., when he filed his first habeas petition, Clark was

not the law. The question then is whether the federal court

should respect the state court's retroactive application of its

Clark timeliness rules to bar consideration of petitioner's

claims.

The Ninth Circuit, in an opinion that is difficult to

decipher in terms of the precise procedural bars being

addressed, held:

The California Supreme Court has recently held that

the procedural bars that state relied upon are

discretionary, and have not been applied consistently.

[citing In re Clark.]

Siripongs v. Calderon, 35 F.3d 1308, 1318 (9th Cir. 1994).

Nowhere in the entire opinion did the Ninth Circuit

specify precisely what procedural bars the state had expressly

relied upon in its brief, and the order of the California Supreme

Court was completely non-explanatory in this respect. One is

left to divining what procedural bars the Ninth Circuit perceived

as having been raised by the state in its briefs (end ruled upon

by the California Supreme Court) in its later discussion of

“subsequent,” “successive” and “piecemeal” petitions.

Siripongs held that its piecemeal petition was not procedurally

barred. Clark itself discussed piecemeal, successive and

delayed (untimely) petitions. However, even respondent

concedes that the state supreme court itself was attempting to

clear up inconsistencies of procedural bar application: “Our

past decisions have thereby suggested that the rules against

piecemeal presentation of claims and repetitious [successive]

petitions are subject to undefined exceptions and that the court

may be willing to entertain multiple collateral attacks on a

judgment notwithstanding the potential for abusive writ

practice.” In re Clark, 5 Cal.4th at 768, 21 Cal.Rptr.2d at 520.

Respondent notes, however, that Clark made a

different statement for its delay (untimeliness) rules--and

37

respondent is correct. “Our decisions have consistently

required that a petitioner explain and justify any substantial

delay in presenting a claim.” In re Clark, 5 Cal.4th at 783, 21

Cal.Rptr.2d at 530. The problem with respondent's (and

Clark's) pronouncements is that in the circumstances of this

case, and Siripongs as well, there is absolutely no meaningful

distinction between claims brought in a “piecemeal” fashion

and claims brought with undue “delay”--a claim brought in a

piecemeal fashion is a delayed claim and vice versa.

In two other death penalty cases, relying on the Ninth

Circuit authority, this court has previously found that California

law was not sufficiently, consistently applied in the past (pre-

Clark) with respect to untimely petitions. Bean v. Calderon,

CIV S-90-0648 EJG GGH P, affd., 96 F.3d 1126 (9th Cir.

1996); Hayes v. Vasquez, CIV S-92-0603 DFL GGH P, affd.,

103 F.3d 72 (9th Cir. 1996). In both Bean and Hayes, the first

state habeas petitions were filed not only pre-Clark but also

prior to the enactment in 1989 of the California death penalty

standards discussed above. In the instant case, although the

first state habeas petition was filed pre-Clark, it was filed after

enactment of the 1989 policies. Consistent with this court's

orders in Bean and Hayes, this court finds that the citation to

Clark does not establish a procedural bar in the instant case

insofar as the “default” occurred prior to Clark. However, this

court will consider whether the citation to standard 1-1.2 is a

separate procedural bar.

As discussed above, the California Supreme Court

cited standard 1-1.2 which, at that time, provided that a petition

filed more than 60 days after the final due date for the filing of

appellant's reply brief on the direct appeal may establish

absence of substantial delay if it alleges with specificity facts

showing the petition was filed within a reasonable time after

petitioner or counsel became aware of information indicating a

factual basis for the claim and became aware of the legal basis

for the claim. In applying this specific standard, the California

Supreme Court implicitly found that petitioner had not shown

with specificity facts showing that the petition was filed within

a reasonable time after petitioner and/or counsel became aware

38

of the relevant facts. In other words, the California Supreme

Court cited standard 1.1-2 for the proposition that the second

petition was not timely. :

In Morales v. Calderon, 85 F.3d 1387 (9th Cir. 1996),

the Ninth Circuit addressed these standards. In that case, the

petitioner filed his first state habeas corpus petition on

December 16, 1992. The California Supreme Court denied the

petition as untimely, citing standards 1-1.1 to 1-3 and In re

Stankewitz (1985) 40 Cal.3d 391, 396 fn. 1, 220 Cal.Rptr. 382,

708 P.2d 1260. Morales, 85 F.3d at 1389. The district court

found that the procedural bars invoked were adequate and

independent state grounds that supported the Supreme Court

judgment. Morales, 85 F.3d at 1389. The Ninth Circuit

reversed the district court, finding that California's rule on

timeliness was not “clear, consistently applied and well-

established” at any time after Morales's convictions were

affirmed and before he filed his first state habeas petition.

Morales, 85 F.3d at 1393.

In reaching this holding, the Ninth Circuit stated,

We find it difficult to articulate California's

timeliness requirements as they applied to Morales.

The Standards make it clear enough that a petition for

habeas corpus is presumed timely if filed within 60

(later 90) days of the final due date of the petitioner's

reply brief on direct appeal, Standards § 1-1.2, but

Morales's appeal had already been decided at the time

the Standards were announced. Neither the Standards

themselves nor California cases construing those

Standards create an unambiguous rule on timeliness

beyond the 60 or 90 days.

ae oe oe oe ae a a

We find so much variation in application of

California's timeliness requirements before Clark that

we conclude that no discernible clear rule then

existed for petitions filed more than 90 days after the

due date of the reply brief on direct appeal.

39

Morales, 85 F.3d at 1390, 1391.

In Deere v. Calderon, 890 F.Supp. 893, 899 (C.D.Cal.

1995), the district court for the Central District of California

also found that the California Supreme Court “gave little shape

to these standards until it issued a lengthy habeas decision in In

This court is persuaded by the strong dicta of the

Ninth Circuit in Morales and Deere regarding the inconsistent

application of these standards prior to Clark. For the reasons

discussed above, this court finds that petitioner's failure to raise

the claims set forth above in his first state habeas corpus

petition does not constitute an adequate procedural bar.

Post-Clark Default: Belated Filing of Second State Habeas

Petition

As discussed above, on December 6, 1993, this court

issued an order staying this case to allow petitioner to exhaust

State court remedies. On December 1, 1995, approximately two

years later, petitioner filed his second petition for writ of habeas

corpus in the California Supreme Court. On December 6, 1995,

the California Supreme Court denied this petition on procedural

grounds and on the merits.

At the time the federal action was stayed and

petitioner was directed to return to state court and exhaust state

court remedies, i.e. December 1993, Clark was the law. Clark

was decided July 29, 1993. Petitioner waited two years before

filing the exhaustion petition. The issue is whether the citation

to Clark is an adequate procedural bar to the issues raised in an

exhaustion petition filed post-Ciark.

Petitioner argues that Clark has no relevancy to what

he did following December 1993 because the time he should

have raised the claims at issue was when he filed his first state

habeas petition in 1990. In essence, petitioner is arguing that

because his first state habeas petition was filed prior to Clark,

there was no time limit for the filing of his exhaustion petition.

‘Common sense, and the court’s order of February 9, 1994 (see

below), dictate that this cannot be the law.

40

The whole import of Clark is that, although the

timeliness standards for filing state habeas petitions may have

been unclear in terms of what was substantial delay and what

situations might excuse the delay prior to Clark, counsel were,

by the Clark decision, then put on notice that the opaque had

become crystal clear. Commencing with the Clark decision

(July 29, 1993), any unreasonable delay occurring after Clark

would be subject to the clear and unambiguous rules set forth

therein.

Although respondent has the burden of establishing

that Clark has been regularly followed, that burden is easily

met. No one expects that respondent must depose the justices

of the California Supreme Court, or that discovery must be

ordered to probe use of the citation in unpublished opinions.”

Rather, respondent’s burden is met by examining the clarity of

Clark itself, and its subsequent use in reported opinions. See,

Younan v. Caruso, 51Cal. App.4th 401, 411, 59 Cal. Rptr.2d

103, 109 (1996); People v. Senior, 33 Cal.App.4th 531, 538, 41

Cal.Rptr.2d 1, 5 (1995); In re Birdwell, 50 Cal.App.4th 926,

929, 58 Cal.Rptr.2d 244, 246 (1996) (exception applied--

sentence given in excess of court’s jurisdiction). The court

finds no evidence that Clark is not regularly followed by the

California courts.

Before reaching petitioner’s contentions of “cause for

the delayed filing,” it is first necessary to dispel petitioner’s

contentions that he is being treated unfairly in comparison to

the petitioner in Bean because that petitioner (Bean) also

delayed filing his state petition on exhaustion--yet this same

court did not find petitioner in Bean to have defaulted post-

Clark. See, Petitioner’s April 25, 1997, briefing.

5. Anyone involved in adjudicating numerous 28 U.S.C. § 2254

habeas cases in California at the district court level is very familiar with the

frequency of Clark procedural bar citations and motions to dismiss brought

by the Attorney General. Moreover, by reference to the Clark citations in

Siripongs, Morales, Bean, and Hayes, one can see that the California

Supreme Court pronounces procedural default based on Clark quite

regularly.

ai

Court records indicate that on September 26, 1991,

this court ordered the Bean case stayed so that petitioner could

return to state court and exhaust state court remedies.” On

October 31, 1991, counsel was appointed by the California

Supreme Court to represent petitioner Bean. On October 15,

1992, the California Supreme Court denied petitioner Bean's

request for funds. On May 26, 1994, petitioner Bean filed his

state habeas corpus petition.

In Bean, it is true that approximately three years

lapsed between the time this court ordered the petitioner to

return to state court and exhaust his remedies and the time the

petitioner filed his exhaustion petition. However, this court

ordered peiitioner to exhaust pre-Clark. Such a fact makes all

the difference. Assuming the issue had been brought to the

court’s attention, this court would have had to find as a factual

matter in Bean that the delay in filing the petition on exhaustion

therein commenced prior to Clark--indeed, no matter when any

particular delay commenced in Bean, every delay commenced

prior to Clark. This court could not have logically held in Bean

that some delays commencing pre-Clark were not sufficient for

a procedural bar, and others commencing pre-Clark

nevertheless occasioned the bar. This is the first case assigned

to the undersigned in which the default at issue commenced

post-Clark. Therefore, this court is not bound by its earlier

evaluation of Bean..

Having found that petitioner herein has defaulted the

claims from the second state habeas petition, the court turns to

whether he has demonstrated cause and prejudice for the default

or a fundamental miscarriage of justice.

On April 7, 1997, this court issued an order directing

petitioner to file briefing addressing the reasons for the two year

delay between the time this action was stayed and the time he

filed his exhaustion petition in state court. On April 25, 1997,

petitioner filed a response to the April 7, 1997, order. Petitioner

6. Judicial notice may be taken of court records. Valerio v. Boise

Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D.Cal. 1978), aff'd, 645 F.2d 699

(9th Cir.), cert. denied, 454 U.S.°1126 (198i }

42

states that counsel could not immediately file an exhaustion

petition without conducting further investigation, as counsel

had not represented petitioner during the earlier state

proceedings. Petitioner states that counsel requested funds from

the state supreme court on two occasions. The state court gave

counsel $1,450 for investigation, although counsel had sought

$35,000. Counsel determined it would be futile to immediately

seek funds from the state court without developing more facts

in support of a funds request. Petitioner filed the exhaustion

petition approximately 13 months after the state court denied

the request for funds for investigation and assistance.

The court cannot find that petitioner has demonstrated

cause for this default. Petitioner claims that the denial of

funding by the California Supreme Court caused petitioner to

have to conduct additional investigation before filing the

exhaustion petition, and that petitioner's counsel was not as

familiar with the case having not represented petitioner during

earlier state proceedings. The argument is obfuscatory and

specious. This court observes that all of the claims specifically

identified as defaulted in the second state habeas petition (filed

December 1995)were raised, virtually word for word, in the

pre-exhaustion federal petition filed January 15, 1993.

Moreover, petitioner “investigated” the claims in the 1993

federal petition for nearly one and one-half years before filing

the pre-exhaustion federal petition. Although this court

discouraged full funding of expert investigation fees at the time,

counsel were given $93,725.00 in attorneys’ fees for purposes

of investigation and preparation of the initial petition along with

$1,202.92 in expense reimbursement during the time period

from appointment to order of exhaustion (7/30/92-12/19/93).

Moreover, the vast majority of claims and subclaims under

scrutiny for procedural default involved no possible expert

testimony. Counsel was expressly told that if she needed

investigative monies to state a claim, as opposed to finally

prove it, this court would consider such a request. Order, April

2, 1993 at 2-4. No such request was made. Yet petitioner states

that he needed even more “investigative” time when taking the

federally stated claims over to state court. This cannot be.

43

And, when petitioner applied for and was refused funds in state

court, one year after this court ordered exhaustion, it still took

petitioner a year to file the exhaustion petition for claims that

had already been satisfactorily stated in federal court two years

earlier.

In addition, petitioner was expressly advised early

after the court told petitioner to exhaust that this court would

not extend any time in which to file a state habeas petition, and

the court expressly advised petitioner he might be prejudiced if

he delayed in filing a state habeas ptition on exhaustion.

Order. Feb. 9, 1994. Despite this warning, the exhaustion

petition was finally filed two years after this court ordered

exhaustion only because respondent filed for, or was going to

file for, an execution date.

The claims (presently at issue) raised in the

exhaustion petition are virtually identical to those raised in the

first federal habeas corpus petition. Under these circumstances,

there is no legitimate reason why petitioner could not have

simply filed the exhaustion petition immediately following this

court's order staying federal proceedings. Petitioner's counsel

has not demonstrated good cause for this delay. For that reason,

there is no need to examine whether petitioner has demonstrated

prejudice.

Turning to the issue of whether a fundamental

miscarriage of justice exists, petitioner must demonstrate actual

innocence. Murray v. Carrier, 477 U.S. at 490, 106 S.Ct. at

2626. The California Supreme Court summarized the case

against petitioner as follows:

The body of Rickey Van Zandt was found facedown

at the bottom of a hill by Sierra County law

enforcement officers. His skull was crushed; he had

been beaten to death. Defendant admitted on several

occasions before and after his arrest that he had hit

Van Zandt over the head at least 13 times with a rock

and a stick in order to steal his van. After striking the

fatal blows, defendant left the scene in the van with

his two female companions and drove out of the state,

where he was apprehended. At his trial, defendant

44

repudiated his numerous admissions of guilt and

blamed his companions for Van Zandt's murder. The

jury rejected his testimony and found him guilty.

After it heard penalty phase evidence that focused on

defendant's prior offenses of attempted rape and

kidnaping, it returned a verdict of death.

Morris, 53 Cal.3d at 175-76.

As stated above, petitioner testified on his own behalf

and denied killing Van Zandt. He testified that Van Zandt was

killed by his female companions, Avette Barrett and Allison

Eckstrom, after Van Zandt tried to rape Barrett. Morris, 53

Cal.3d at 178. Petitioner testified that Van Zandt returned to

the van while petitioner was still fishing. Id. When petitioner

later returned, he found Eckstrom upset and Barrett crying. Id.

Both women had blood on their dresses. Id. According to

petitioner (at trial), Barrett explained that she had killed Van

Zandt by hitting him with a rock when he had tried to rape her

in the van. Id. Defendant then pulled Van Zandt, still alive, out

of van. Id. Eckstrom hit him with a stick and mumbled that she

had killed him. Id. The jury disbelieved petitioner.

Petitioner has offered no new evidence in support of

his claim of actual innocence of the crime. Rather, he appears

to rest his claim of innocence entirely on the record as presented

at trial. At trial, petitioner argued that Barrett and Eckstrom

had killed Van Zandt. In support of the instant claim of

innocence, petitioner has offered no additional evidence to

support this claim. For example, petitioner has not provided

the court with affidavits from either Barrett or Eckstrom

discussing their involvement in the killing. In establishing

actual innocence of the crime, petitioner cannot rely solely on

the instant record. Therefore, the claims relating to the guilt

phase that the court has found defaulted do not implicate actual

innocence. In ordering these claims dismissed for procedural

default, no miscarriage of justice will occur.

In determining that petitioner has not demonstrated

actual innocence for any guilt phase issue, the court has

considered whether petitioner’s ineffective assistance

allegation--that his counsel was ineffective for not developing

45

the “fact” that petitioner did not form the requisite intent to kill

or for the special circumstance of felony murder (here the intent

to rob) because of mental infirmity--is an allegation of “actual

innocence.” That is, assuming that a defendant was the

causative factor in the killing, but that he now alleges that he

did not possess the intent required for the crime of conviction

on account of mental illness, is that defendant claiming “actual

innocence” of the crime of conviction--even though he may be

guilty of some lesser crime. While the Ninth Circuit has not

opined on the subject to the undersigned’s knowledge, the court

will assume that such an allegation implicates actual innocence

in the strictest sense. See Jones v. Delo, 56 F.3d 878, 883 (8th

Cir. 1995); but see Bannister v. Delo, 100 F.3d 610, 616-617

(8th Cir. 1996). However, petitioner is not entitled to an

evidentiary hearing or discovery to demonstrate the purported

actual innocence which would remove the procedural default.

Bannister also incorrectly asserts that an evidentiary

hearing was required so that he could develop

evidence in support of his claim of actual innocence.

In Battle, 64 F.3d at 353, we rejected the argument

that an evidentiary hearing was necessary to enable

the petitioner to develop evidence "which, he

claim[ed], w[ould] exonerate him." Noting that "[iJ]n

essence, [petitioner] [wa]s asking us to excuse his

evidentiary default as to his claim of actual

innocence, ... in order that he may develop sufficient

evidence of his actual innocence[,]" we found "[t]his

circular argument [wa]s without merit." Id. at 354.

We explained: a remand is inappropriate because the

actual innocence gateway through a procedural bar

is not intended to provide a petitioner with a new

trial, with all the attendant development of evidence,

in hopes of a different result. Rather, it is an

opportunity for a petitioner, aggrieved by an

allegedly defective trial and having inexcusably

defaulted the available remedies, to raise such a

strong doubt to his guilt that, in hindsight, we cannot

have confidence in the trial's outcome unless it was

46

indeed free of harmless error. To avail himself of that

opportunity, it is the petitioner's, not the court's,

burden to support his allegations of actual innocence

by presenting new reliable evidence of his innocence.

Bannister v. Delo, 100 F.3d at 616. ©

In the instant case, petitioner did not assert at trial that

he had killed Van Zandt but that he did not have the capacity to

form the required intent, nor did he allege that he actually

lacked the intent to kill and/or rob his victim. Rather, he

claimed that his co-travelers committed the murder when he

was absent. Now, petitioner, having been unsuccessful with

this alibi defense at trial, claims in this habeas proceeding (at

least in part) that if he did actually kill Van Zandt, he lacked the

requisite intent to kill or rob. And, of course, petitioner wants

a full fledged trial to prove this latter day contention without

presenting any evidence of such at the present time. The strict

actual innocence exception to procedural default is not to be

construed as the means by which the procedural default rule

itself is rendered meaningless by the mere invocation of its

exception. A claim of actual innocence does not automatically

mandate a trial on the very issue defaulted.

However, the court will defer determination of “actual

innocence” as it applies to the penalty phase. The court desires

to make this determination when it has a better grasp of what

that term means as applied to the penalty phase. Claims of

“actual innocence” for purposes of assessing a miscarriage of

justice at the penalty phase are more problematically

determined at this juncture. Previous Supreme Court cases

have held, in the habeas context of procedural default, that the

“not guilty of the offense” concept, a.k.a. “actual innocence,”

requires that one be permitted to prove “actual innocence of the

death penalty” for assertions of error at a penalty phase.

Sawyer v. Whitley, 503 U.S. 333, 112 S.Ct. 2514 (1992).

Indeed, actual innocence is defined in Sawyer as “petitioner has

shown by clear and convincing evidence that but for

constitutional error no reasonable juror would find him eligible

for the death penalty under Louisiana law.” Sawyer, Id. at

47

348.” With respect to subclaims--B, G, and M of Claim

XXXVII, the court will defer the ultimate miscarriage of justice

ruling pending further review of investigative requests and the

merits briefing.

The court makes the same deferral ruling with respect

to claims that petitioner was not competent to stand trial.

Subclaim H of XXXVII, and Claim XXXVIII. The application

of “actual innocence” to competency claims requires further

analysis.

Therefore, in summary: Claims VIII (altering theories

of admissibility), XVII, and XXXVII (A, C, D, E, F, I, J, ig is

N, O, P) should be finally procedurally defaulted; Claims

XXXVII (B, G, H, M), and XXXVIII should be procedurally

defaulted pending a final determination of the miscarriage of

justice exception to the procedural default doctrine.

C. Individual Claims Found Defaulted in Appeal, i.e.,

For Reasons Other Than Timeliness

Respondent argues that several individual claims

raised in petitioner's direct appeal are procedurally defaulted.

Petitioner did not address these claims in the opposition to the

motion to dismiss. The court will address these claims

individually. At the conclusion of the discussion, the court will

address whether petitioner has shown cause and prejudice or a

fundamental miscarriage of justice. Harris, 489 U.S. at 262,

109 S.Ct. at 1043.

Claim III of the Amended Petition challenges the

admission of evidence regarding petitioner's escape plot. This

claim has two components. First, petitioner alleges violations

of the Fifth, Sixth, Eighth and Fourteenth Amendments because

the trial court admitted the testimony of a jailhouse intormant,

7. With appropriate word changes, the Supreme Court has utilized

the same definition as the Act for “actual innocence” in the liability phase.

Sawyer, 112 S.Ct. at 2519 (fn.5). In other words, although it may not be

practically true, the Supreme Court has equated actual innocence with being

found not guilty.

48

Anthony Brooks, that petitioner had planned to escape from jail

while awaiting his trial. Second, petitioner alleges that the

prosecution failed to disclose consideration Brooks received for

his testimony.

Respondent argues that the first component of the

claim, i.e. the challenge to admission of the testimony, is

procedurally barred because the California Supreme Court held

that petitioner had waived® this contention on appeal by failing

to object at trial. The California Supreme Court rejected this

claim on the merits and on procedural grounds:

At trial defendant moved to exclude Brooks's

testimony, asserting that jailhouse informants are

unreliable witnesses. The trial court held a pretrial

hearing on the motion, but made no ruling.

Defendant failed to request a ruling and made no

objection when Brook's testimony was offered. As a

result of these events, defendant has waived any

claim of error in the introduction of Brooks's

testimony for two reasons. First, defendant failed to

object to the escape evidence when it was offered.

(People v. Rodgers (1976) 54 Cal.App.3d 508, 517

[126 Cal.Rptr. 719].) In contrast to the immunity

agreement issue (see pt. VII, ante), the trial court

never made a ruling on Brooks's testimony.

Defendant was obligated to press for such a ruling

and to object to Brooks's testimony until he obtained

one. He failed to do so, thus depriving the triai court

of the opportunity to correct potential error. Second,

defendant failed to advance in the trial court the

specific ground for exclusion he now urges.

Defendant's motion is directed to the alleged

unreliability of jailhouse informants, not to any

8. A recent Ninth Circuit case has distinguished “waiver” of a

claim from “forfeiture,” and perhaps “forfeiture” is the correct term. United

States v. Magallou, F.3d.__, 1997 WL 219504 (9th Cir. 1997). However,

the term “waiver” is so commonly used, this court will continue with such

terminology.

49

inherent ambiguity in escape-attempt evidence when

multiple crimes are charged. The motion was

therefore not sufficiently specific to preserve the

alleged error. (Evid. Code, § 353; People v.

Coleman, supra, 46 Cal.3d at p. 777; People v. Ghent,

supra, 43 Cal.3d at p. 766.) Because of defendant's

procedural omissions, the trial court had no fair

opportunity to consider excluding this evidence.

Therefore, defendant cannot challenge its ruling on

appeal.

We also reject the claim on the merits...

People v. Morris, 53 Cal.3d 152, 195-196 (1991).

The California Supreme Court denied this claim on a

procedural rule that is independent of federal law and adequate

to support the judgment. Coleman v. Thompson, 501 U.S. 722,

111 S.Ct. 2546 (1991). That the California Supreme Court

reached the merits of the claim is of no dispositive significance.

Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 1044

(1989). Therefore, this claim is procedurally barred.

_ Respondent next argues that claim IX (improper admission

of letter from petitioner to Avette Barrett) is procedurally

‘barred. In this claim, petitioner alleges that while he was

detained pending trial, he wrote a letter to Avette Barrett. The

letter contained damaging admissions, i.e., that petitioner had

“killed” for her. He claims that the letter was improperly

admitted at trial on several grounds: 1) its admission violated

the Best Evidence Rule; 2) admission of the letter was more

prejudicial than probative; 3) admission of the letter deprived

him of the ability to confront and cross-examine a crucial

witness; 4) to the extent no objection was made to the

introduction of this evidence, petitioner received ineffective

assistance of counsel.

The California Supreme Court rejected petitioner's

claim that admission of the letter violated the Best Evidence

Rule because his attorney failed to object in the trial court to

admission of the letter on this ground. Morris, 53 Cal.3d at

204, 299 Cal.Rptr. at 750. For that reason, the California

Supreme Court found that petitioner had waived this objection

50

on appeal. Id, Similarly, the state supreme court held that any

objection based on “undue prejudice” was waived. Id. at 205,

279 Cal.Rptr. at 750. Although the California Supreme Court

did go on to address this objection on the merits, petitioner's

claim regarding violation of the Best Evidence Rule is

procedurally defaulted in the instant action.

The California Supreme Court also found that

petitioner had challenged the admission of the document based

on relevancy. Morris, 53 Cal.3d at 205. Therefore, the court

will review the relevancy challenge on its merits in its later

Findings and Recommendations. Moreover, the California

Supreme Court has never procedurally barred the ineffective

assistance of counsel claim directed to the alleged failure of

trial counsel to object to the letter. This may well be because

this ineffective assistance claim was separated from the main

body of ineffective assistance claims (XXXVII). Nevertheless,

unless the California Supreme Court has barred the claim, this

court is without authority to impose its own determination of

what the state supreme court might have done had it scrutinized

the petition on exhaustion more closely. Caldwell v.

Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638 (1985).2

Accordingly, this court finds that petitioner's challenge to the

admission of the letter on grounds that it violated the Best

Evidence Rule and was more prejudicial than probative are

procedurally barred, but not barred on relevancy or ineffective

assistance grounds.

Respondent argues that Claim XI (challenge to

admission of testimony of Rickey Van Zandt's mother) is

procedurally barred. In this claim, petitioner alleges that the

Fifth, Sixth, Eighth and Fourteenth Amendments were violated

when the trial court permitted Rickey Van Zandt's mother to

testify that she had given him permission to use the van

petitioner was convicted of stealing, and to identify and

9. The court does pause to note its displeasure with petitioner’s

pleading practice of allying substantive claims with an ineffective assistance

of counsel claim despite an “omnibus” ineffective assistance section.

Petitioner sets up an unnecessarily complicated pleading.

introduce a photo of her son. The background of this claim is

51

set forth in the opinion of the California Supreme Court:

M

The prosecution called Lowelene Helms, the victim's

mother, as its first witness. Before she testified,

defendant objected to any attempt by the prosecution

to ask her to identify the autopsy photos of her son's

corpse, noting that the photos had already been ruled

admissible. The trial court sustained the objection

and precluded the testimony, noting the potentially

inflammatory effect of such questioning. In an effort

to preclude other testimony by Ms. Helms, defense

counsel offered to stipulate that: 1) the victim was in

lawful possession of the van; 2) he had his mother's

consent to use it and her credit cards; and 3) she had

given such permission to no one else. The prosecutor

declined to accept the stipulation and the trial court

refused to compel acceptance. Ms. Helms took the

stand, testifying very briefly (her testimony occupies

approximately five transcript._pages) to matters

included in the proffered stipulation as well as others.

orris, 53 Cal.3d at 208, 279 Cal.Rptr. at 752.

In addressing the claim regarding the testimony of

Van Zandt's mother, the California Supreme Court stated,

Initially, there was no defense objection to several

items in Ms. Helm's testimony that are now claimed

to be inflammatory or prejudicial, e.g. 1) her

reference to her husband's death from cancer and her

loan of the van to her son so he could “get away”; and

2) her identification of photos of her son while alive.

In the absence of an objection, defendant has waived

any error in the admission of this evidence. (Evid.

Code, § 353.)

Although the court should have required a stipulation

on routine evidence to avoid the prospect of

prejudicial victim-impact testimony (see People v.

Bonin (1989) 47 Cal.3d 808, 848-849 [254 Cal.Rptr.

298, 765 P.2d 460]; People v._Brown (1988) 45

52

Cal.3d 1247, 1262 [248 Cal.Rptr. 817, 756 P.2d

204]), we find no reversible error from its failure to

do so...

Morris, 53 Cal.3d at 208, 279 Cal.Rptr. at 752-753.

Petitioner's instant claim regarding the testimony of

Ms. Helm's appears to contain two elements. First, petitioner

argues that she should not have been permitted to testify

regarding certain matters. Second, he claims that the trial judge

improperly failed to require the stipulation. It is clear that the

challenge to the testimony itself is defaulted based on counsel's

failure to object. For that reason, this part of claim XI is

procedurally barred. The challenge to the failure of the trial

court to require the stipulation was addressed by the California

Supreme Court on the merits. Therefore, it is not procedurally

barred.” |

Next, respondent argues that claim XII is procedurally

barred. In this claim, petitioner alleges that his constitutional

rights were violated when the defense was required to disclose

to local law enforcement authorities that they intended to call

out of county jail inmates as witnesses on petitioner's behalf at

trial.

The California Supreme Court rejected this claim:

We need not reach the merits of defendant's argument

because he has waived any alleged error. The record

reveals that defendant made no request for a

protective order or other relief that might have kept

the identities of his witnesses confidential until they

10. This is one of the few claims for which petitioner did not

textually state that counsel was ineffective for failing to object. The court

does not recognize the pleading mantra utilized as a preamble for every

claim--that the claimed error violated the Fifth, Sixth, Eighth and Fourteenth

Amendments with no textual allegation--as fairly presenting an ineffective

assistance claim either to this court or to the California Supreme Court.

11. In this claim, petitioner also alleges that the prosecutor

improperly examined one of these inmates concerning protected speech and

religious beliefs in an attempt to impeach her. Respondent does not

challenge this part of claim XII as procedurally barred.

53

were summoned to court. (See Millaud v. Superior

Court (1986) 182 Cal.App.3d 471, 474 [227 Cal.Rptr.

222]; Rosato v. Superior Court (1975) 51 Cal.App.3d

190, 205-207 [124 Cal.Rptr. 427].) Instead,

defendant's first and only complaint about these

witnesses was a motion to expedite their return to

Sierra County because they were being “harassed” in

the San Joaquin County jail. The declaration of

defense counsel supporting that motion stated in part

that the “witnesses have been cooperative and at our

request have talked to the prosecution, after the

prosecution independently identified who those

witnesses were, apparently after a removal order was

served on them...” (Italics added.) Having thus made

no attempt to deny the prosecution access to his

witnesses, defendant is in no position to complain

that it interviewed them.

Moreover, defendant supplies no evidence of any

prejudice from the prosecution interviews.

Morris, 53 Cal.3d at 209, 279 Cal.Rptr. at 753.

In finding this claim defaulted, the California

Supreme Court found that petitioner had failed to request a

protective order or other relief. Unlike other grounds for

finding a procedural bar, such as failing to object, this court is

not so familiar with this specific ground. However, it appears

that the state supreme court is applying to this specific situation

a general “fail-to-ask-at-your-peril” waiver rule which is

familiar to all lawyers.~ 12’ Moreover, although it is true that it is

respondent's burden to demonstrate that a procedural practice is

clearly defined, firmly established and regularly followed, when

the portion of the California Supreme opinion cited by

respondent indicates that the procedural practice is routinely

followed, such as by the citation to supporting case authority,

12. For example, if one fails to ask a lower court to rule on an

issue, the issue is quite often considered waived on appeal. Int. Union of

Bricklayers etc v. Martin Jasks, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985).

54

this court finds that respondent has met its burden in identifying

an adequate procedural bar. Under these circumstances, if the

rule is not regularly and routinely followed, then petitioner has

some burden to bring that to the court's attention.

As there is nothing in the record indicating that this

practice is not regularly and routinely followed, the court finds

that this claim is procedurally defaulted.

Respondent argues that portions of Claim XXIX are

procedurally barred. In this claim, petitioner alleges that the

prosecutor committed misconduct in examining defense

mitigation witnesses and during his penalty phase closing

argument. In particular, petitioner alleges the following

misconduct. First, he claims that during cross-examination of

Warden Wilson the prosecutor improperly inquired whether he ~

had spoken to victims’ families about the tragedies they

suffered. The prosecutor also asked the Warden about the

murder rate in prison and about instances of guards and inmates

being murdered. The prosecutor also asked mitigation

witnesses Reverend Byron Eshelman and Dr. Carroll whether

plaintiff was a dangerous man.

In paragraph D of this claim, petitioner also alleges

that the prosecutor made several improper comments during

closing argument:

1) he exhorted the jury to disregard constitutionally

relevant mitigation: he said the jury was not to

consider whether petitioner could function in prison

(RT 5284); 2) he misadvised the jury about how the

petitioner's background evidence was to be evaluated:

he said that petitioner's background did not

“mitigate[] the crime that is before you today (RT

5283); 3) he invited evidentiary comparisons

precluded by Booth and Payne: that Ricky Van :

Zant's mother felt her son should not have gotten the

death penalty (RT 5282-83); 4) that the jury should

consider the “anguish and emotional scars” suffered

by the victim of petitioner's 1980 crime, although no

such evidence had been admitted (RT 5288); 5) he

violated the rule of People v. Davenport, 41 Cal.3d

55

247 (1985); he argued that the absence of Factor H

evidence--petitioners mental capacity--was an

aggravating factor; 6) he violated People _v.

Murtishaw, 29 Cal.3d 733 (1981): he argued that

petitioner's future dangerousness was an aggravating

factor; 7) he violated Lesko v. Lehman, 925 F.2d

1527 (3d Cir. 1991): that petitioner lacked remorse

(RT 5287); and 8) he asked the jury to consider

constitutionally irrelevant information: that the

financial cost of life without parole would be high

(RT 5284, 5288).

Amended petition, p. 59-60 (paragraph D).

In paragraph E petitioner alleges that the closing

argument provided the jury with a misleading and

fundamentally incorrect and improper view of its sentencing

responsibilities. In paragraph F, petitioner argues that the

prosecutor's argument, alone and in combination with erroneous

jury instructions, violated his right to a fair and impartial jury,

not to be compelled to testify in his own behalf, to confront and

cross-examine witnesses, to a reliable penalty decision, to a

penalty decision which is not arbitrary or capricious, to equal

protection and to due process. In paragraph G, petitioner argues

that to the extent that counsel made no objection, counsel was

ineffective.

As to the prosecutor's cross-examination of Warden

Wilson regarding whether he had talked to victims’ families and

the murder rate in prison, the California Supreme Court found

that this claim was waived due to the failure to object. Morris,

53 Cal.3d at 219, 279 Cal.Rptr. at 760. The California Supreme

Court also found that the claim of prosecutorial misconduct

based on the questioning of Dr. Carroll was also waived for

failure to object. Morris, 53 Cal.3d at 220 n. 16, 279 Cal.Rptr.

at 760. The Court addressed the claim regarding the cross-

examination of Reverend Eshelman on the merits. Therefore,

only the claims of prosecutorial misconduct in connection with

the questioning of Warden Wilson and Dr. Carroll are

procedurally barred.

As to petitioner's challenge to the closing argument,

56

the California Supreme Court stated,

Defendant cites the prosecutor for misconduct in final

argument, alleging “numerous improper comments.”

At the outset, we note that defendant interposed no

objection at trial to any of the prosecutor's comments

during final argument, therefore, defendant has

waived any error or misconduct that could have been

cured by a timely admonition. (People v. Bell, supra,

49 Cal.3d at p. 548; People v. Lang, supra, 49 Cal.3d

at p. 1041; People v. Lucky (1988) 45 Cal.3d 259,

293 [247 Cal.Rptr. 1, 753 P.2d 1052].)

Anticipating a waiver finding, defendant asserts that

the prosecutor's argument was sO egregious that

reversal is compelled in any event, apparently

because either the trial court should have restrained

the prosecutor sua sponte or that defendant's trial

counsel demonstrated his ineffectiveness by failing to

object. Having reviewed the challenged portions of

the prosecutor's argument, we find no merit in either

argument.

Morris, 53 Cal.3d at 220, 279 Cal.Rptr. at 761.

It is clear that petitioner's claims of prosecutorial

misconduct contained in paragraph D, E and F are defaulted.

Moreover, the state supreme court’s further finding that the

prosecutor’s argument was not so egregious so as to relieve

petitioner of his default is simply the California court’s required

review of its exception to its own waiver rule. Petitioner has

entirely waived his right to proceed on this claim.

Finally, although not raised in respondent's motion, it

appeared to this court that part of petitioner's Claim I (Avette

Barrett's testimony improperly admitted) was procedurally

barred. The court discussed this issue with the parties at the

March 12, 1997, oral argument and directed petitioner to file

supplemental briefing regarding this matter.

Claim I alleges that Avette Barrett's testimony was

improperly admitted because it was impermissibly coerced and

false. One element of this claim was that Barrett's original plea

57

agreement included a condition that she take a polygraph test.

On the eve of trial, this element of her plea agreement was

omitted. Petitioner argues that the trial judge improperly

refused to permit inquiry into whether or not Barrett had been

required to take the polygraph examination and, if so, what the

results were. The California Supreme Court found that this

claim was waived:

Defendant also argues that the prosecution was

estopped to object to the admission of polygraph

evidence because of the polygraph condition in

Barrett's plea bargain. Defendant did not advance

this argument in the trial court when the prosecutor's

objection was made; he is now barred from asserting

it. (Roam v. Koop (1974) 41 Cal.App.3d 1035, 1044

[116 Cal.Rptr. 539].)

Morris, 53 Cal.3d at 193 (n.6), 279 Cal.Rptr. at 742.

In the March 24, 1997, supplemental briefing,

petitioner has directed the court to a portion of the transcript

where defense counsel did object, apparently by way of a

motion in limine, to his inability to question Barrett about the

polygraph:

Mr. Condit: There--as an offer of proof, we believe

the evidence will show that Allison Eckstrom took a

lie detector test, and that she didn't pass it. And that

her sister on advise of counsel, refused to take it.

And we will show that taking and passing a lie

detector test was a written part of the plea bargain

agreement. Although Evidence Code 351.1(a) bars

evidence of a lie detector test with the exception of--

by mutual ‘stipulation, we feel the line of cases

indicating that the defense should be able to cross-

examine witnesses regarding anything that has

anything to do with motive or bias control. And that

if 351.1(a) is applied in such a fashion as to prevent

us from demonstrating that the witnesses did not

comply with the plea agreement, that it would be a

denial of due process, and that, under that

circumstances, Evidence Code Section 351.1(a)

58

would be unconstitutional. Therefore, at this time,

we are asking the Court for an in limine ruling on

whether or not we can ask any questions regarding

the lie detector test. (RT:20:3892-93.)

Because it appears that petitioner's counsel did

request to question Barrett regarding the polygraph, the court

finds that this portion of Claim I is not procedurally barred.

As discussed above, although a claim may be

defaulted, a federal court may still consider the claim if the

petitioner demonstrates 1) cause for the default and actual

prejudice resulting from the alleged violation of federal law, or

2) a fundamental miscarriage of justice. Harris, 489 U.S. at

262, 109 S.Ct. at 1943. Applying these standards, the court

now turns to whether it may review any of the claims found

defaulted above.

As petitioner has not addressed the issue of

procedural default in his pleadings, the court finds that he has

failed to demonstrate cause for the default as to any of the

claims. The court will not speculate on petitioner's behalf in

this matter. For that reason, there is no need to examine

prejudice. Also, petitioner has not demonstrated the existence

ofa fundamental miscarriage of justice, i.e. actual innocence for

any of the claims discussed in this section related to the guilt

phase. However, as the court deferred ruling on the miscarriage

of justice issue for certain penalty phase issues in the Clark

13. Respondent argues that ina claim found procedurally defaulted

based on a failure to make a contemporaneous objection, the Ninth Circuit

does not apply the cause and prejudice standard in determining whether the

federal court may review the claim. Rather, respondent argues, the Ninth

Circuit reviews for “plain error, error that is highly prejudicial and affects

substantial rights.” Williams v. Calderon, 52 F.3d 1465, 1482 (9th Cir.

1995). After reviewing Williams, the court finds that the Ninth Circuit

applies the plain error standard in a situation where the claim was not

expressly found defaulted by the state supreme court based on the failure to

make a contemporaneous objection, even though such an objection should

have been made. In a situation, such as in the instant case, where a claim

was found defaulted based on the failure to make a contemporaneous

objection, the cause and prejudice standard still applies.

er

SERA Eh NNT ORAS

59

section, it will do so here as well. Therefore, the court

recommends that the following claims are finally procedurally

barred: Claim III (admission of testimony), Claim IX (Best

Evidence and more prejudicial than probative objections, but

not on a relevancy or ineffective assistance of counsel basis),

Claim XI (on the objections to Ms. Helms’ testimony, but not

on the failure of the trial court to require a stipulation), Claim

XII; Claim XXIX involving penalty phase alleged prosecutorial

misconduct is barred with respect to witnesses Wilson and

Carroll but not with respect to Eshelman, and paragraphs D, E

and F. Claim I is not procedurally barred.

As to the claim XXIX the court will defer its

miscarriage of justice analysis. —

IV. Exhaustion

Respondent argues that several of petitioner's claims

are not exhausted. In particular, respondent claims that

petitioner's claims contained in Claim XVI of the amended

petition, paragraphs B, C, G and H are not exhausted.

Respondent also contends that petitioner's claim contained in

Claim VII, paragraph D ( alleging ineffective assistance of

counsel regarding the Nebraska arrest warrant) is not exhausted.

On March 24, 1997, petitioner filed supplemental briefing

addressing the exhaustion issue.

4

A. Legal Standard

The exhaustion of available state remedies is a

prerequisite to a federal court's consideration of claims sought

to be presented in habeas corpus proceedings. See Rose v.

Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner

can satisfy the exhaustion requirement by providing the highest

state court with a full and fair opportunity to consider all claims

before presenting them to the federal court. Picard v. Connor,

404 U.S. 270, 276 (1971), Middleton v. Cupp, 768 F.2d 1083,

1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).

60

Generally, a mixed petition will require dismissal,

Gordon v. Vasquez,107 F.3d 756, amended 1997 WL 183877

(9th Cir. 1997); however, the Ninth Circuit has also recognized

that a petitioner cannot subvert the capital habeas process by

continually appending new (unexhausted) claims to successive

petitions. Cf. Farmer v. McDaniel, 98 F.3d 1548, 1559-1560

(9th Cir. 1996); Fed. Habeas Rule 9(b). In the case where a

petitioner attempts to accomplish the same “piecemeal

jitigation” approach in a context where the initial petition was

stayed and not dismissed, there is no sensible reason why the

court would not be able to simply strike such claims. Id.

As noted above in the second Clark analysis,

petitioner knew full well that the purpose of filing the initial

federal petition prior to exhaustion was to permit petitioner to

raise all new claims once and for all in order that those new

claims could be exhausted prior to the court’s ruling on the

merits of all fairly presented claims. Order, April 2, 1993 at 2-

3. Also as indicated above, petitioner was given approximately

$100,000.00 to accomplish this task. Prior to the filing of any

amended petition after exhaustion, petitioner was put on express

notice that the amended petition after exhaustion was to include

no unexhausted claim. Order, January 11, 1996. Respondent

was ordered to make a motion to strike any claims which

respondent did not believe to be exhausted:

A motion to strike in lieu of a motion to dismiss for

exhaustion is the appropriate motion to be made for

those claims which at this juncture of the case are

truly unexhausted. To allow the addition of

unexhausted claims would turn these capital habeas

proceedings into a perpetual motion process between

the state and federal courts--a type of exhaustion

paralysis at best. If the recent amendments add new

claims the court should not permit such new claims to

be stated at this time in the absence of extraordinary

cause--new claims should be stricken with prejudice,

not dismissed without prejudice.

Order, January 11, 1996 at 2-3.

The court’s permission to amend the petition after

61

exhaustion was predicated on petitioner’s not adding

unexhausted claims to the reinvigorated federal proceedings in

the absence of extraordinary cause. In certain respects

indicated below, petitioner has violated this court’s order, and

claims asserted in violation of the order should be stricken.

B. Discussion

Petitioner's March 24, 1997, supplemental briefing

does not address whether the portion of claim VII alleging

ineffective assistance of counsel regarding the Nebraska search

warrant is exhausted. At oral argument, petitioner's counsel

stated that she could not find where this issue was raised.

(Transcript from March 12, 1997, hearing, p. 3:10.) It appears

that this claim is unexhausted and there is no good cause why

petitioner should be allowed to proceed with this claim. For

that reason, the court recommends that it be stricken.

Claim XVI, paragraphs B, C, G and H allege jury

instruction error. Paragraphs B and C allege that the jury was

erroneously instructed that there were two standards for

determining whether there had been a first degree murder:

when there is an unlawful killing with malice aforethought or

whether there is a killing during the commission of a felony.

Petitioner argues that in the next paragraph of the instructions,

malice aforethought was not mentioned but murder in the

commission of robbery was. Petitioner argues that these

instructions unconstitutionally deleted an essential element of

murder from jury consideration.

Paragraph G alleges that other instructions mis-

defined the mental state requirements which were predicates for

first or second degree murder. The amended petition alleges

that they were:

For the purpose of the case on trial, you must assume

that the defendant was of sound mind at the time of

his alleged conduct, which, if it is charged,

constituted the crimes charged in the information.

(RT 4894.)

62

If a human being is killed by any one of several

persons engaged in the perpetration of the crime of

robbery, all persons who either directly or actively

commit the act constituting such crime or who with

knowledge of the unlawful purpose of the perpetrator

of the crime and with the intent or purpose of

committing, encouraging oF facilitating the

commission of the offense, aid, promote, encourage,

or instigate by act or advice its commission, are

guilty of murder in the first degree, whether the

killing is intentional, unintentional, or accidental.

(RT 4896.)

To constitute second degree murder there must be, in

addition to the death of a human being, an unlawful

fact [emphasis added] which was the proximate cause

of that death. (RT 4899.)

Paragraph H alleges that instructions relating to heat

of passion were also incorrect or wrongly refused. Petitioner

claims that the trial judge refused the defense request to instruct

pursuant to CALJIC 8.73.

In the March 24, 1997, supplemental briefing,

petitioner argues that these claims were presented in Appellant's

Opening Brief, pages 150-56. It appears that the allegations

contained in paragraphs B and C are contained in the opening

brief, beginning at page 150. It also appears that the

allegations contained in paragraph H regarding the failure to

instruct with CALJIC 8.73 are contained in the opening brief

at pages 152-153. However, the court can find no specific

reference to the instructions alleged in paragraph G. For that

reason, the court finds that the challenge to the instructions

contained in paragraph G is not exhausted and should be

stricken from the amended petition.

Accordingly, IT IS HEREBY RECOMMENDED

that:

1. Respondent's motion to dismiss all claims raised

in petitioner's second state petition for writ of habeas corpus on

grounds that they were denied as untimely be granted as

63

follows: Claims VIII (altering theories of admissibility), XVII,

and XXXVII (A, C, D, E, F, I, J, K, L, N, O, P) should be

finally procedurally defaulted; Claims XXXVII (B, G, H, M),

and XXXVIII should be procedurally defaulted pending a final

determination of the miscarriage of justice exception to the

procedural default doctrine;

2. Respondent's motion to finally dismiss as

procedurally defaulted the following claims raised in

petitioner's state appeal be granted in part as follows: Claim III

(admission of testimony), (relevance admission of testimony of

Anthony Brooks); Claim IX, (admission of Barrett letter

violated Best Evidence Rule and was not more prejudicial than

probative); Claim XI, (testimony of Van Zandt's mother should

not have been admitted); Claim XII (trial court improperly

required disclosure of county jail inmate witnesses). Claim

XXIX (challenges to prosecutorial misconduct in connection

with questioning of Warden White and Dr. Carroll), as well as

prosecutorial misconduct in connection with closing argument

alleged in paragraph D, E, F, should be procedurally defaulted,

but the court reserves its miscarriage of justice analysis on

Claim XXIX;

3. Respondent's motion to strike as unexhausted:

Claim VII and XVI paragraph G be granted, and these claims

found unexhausted be stricken from the amended petition;

Claim XVI, paragraphs B, C, and H be denied.

These findings and recommendations are submitted

to the United States District Judge assigned to the case,

pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

twenty days after being served with these findings and

recommendations, any party may file written objections with

the court and serve a copy on all parties. Such a document

should be captioned “Objections to Magistrate Judge's Findings

and Recommendations.” Any reply to the objections shall be

served and filed within ten days after service of the objections.

The parties are advised that failure to file objections within the

specified time may waive the right to appeal the District Court's

64

order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: May 23, 1997.

s/GREGORY G. HOLLOW

UNITED STATES MAGISTP.ATE JUDGE

GGH:kj:de

Morris2.157

65

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BRUCE WAYNE MORRIS,

Petitioner, No.CIVS-92-0483 EJG GGH P

vs FINDINGS AND

RECOMMENDATIONS

ARTHUR CALDERON, |

Respondent. DEATH PENALTY CASE

INTRODUCTION AND SUMMARY

Petitioner, Bruce Wayne Morris, —is a state prisoner

proceeding with a petition for writ of habeas corpus by a person

under sentence of death pursuant to 28 U.S.C. § 2254.

Respondent, Arthur Calderon, the warden of San Quentin

Prison, has moved for summary judgment on the merits as to all

claims stated in the amended petition for writ of habeas corpus

filed January 17, 1996.

By way of separate Findings and Recommendations filed

on March 3, 1998, the undersigned has recommended that

judgment on Claims XXXVI (36) (in part) and XL (40)

[transmission and confirmation of erroneous jury instruction]

be awarded in favor of petitioner, and that the writ of habeas

corpus be granted insofar as the penalty phase of petitioner’s

trial is concerned. Also, on July 2, 1997, the district court

adopted the Findings and Recommendations involving

procedural default of specified claims filed May 27, 1997. The

precise ruling on procedural default, which dismissed several

claims with prejudice, and tentatively dismissed others pending

a showing of a miscarriage of justice, is described in full below.

All other claims in the amended petition are discussed herein.

It is the recommendation of the undersigned that summary

ee

66

judgment on all remaining claims be awarded in respondent’s

favor, and that the writ be denied except insofar as set forth

above.

ORGANIZATION

The organization of these lengthy Findings is dif ficult

in that certain factual material and issues important to the

results of these Findings overlap the separate sections listed in

the amended petition. It is therefore problematic to treat the

issues in the Amended Petition one by one in the order in which

they appear. Rather than unnecessarily repeat facts and legal

discussion, the court has attempted to resolve all claims with

common issues, as proximate to each other herein as possible.

The court will divide the substantive discussion into the

following major areas:

I. Pretrial Issues

II. Guilt Phase Issues

III. Guilt Phase Jury Instruction Issues

IV. Miscellaneous Guilt Phase Issues

V. Penalty Phase Issues

VI. Penalty Phase Jury Instruction Issues

The detailed organization of these Findings is as

follows: Page

INTRODUCTION AND SUMMARY ...----eereeeeee 1

FACTUAL BACKGROUND ....----sssrrrrrttrttt 6

ge} eae 7

B. Penalty Phase ....-----scsccsserrseseeee® 10

PROCEDURAL BACKGROUND ....------+++++7"° 11

ee MEE og, iki wn se xan sete k en oem ee 11

a er Ree as 13

APPLICABILITY OF THE .’ . | VPererrr Tres 16

SUMMARY_JUDGMENT STANDARDS _IN HABEAS

CREE cs vip ucn ne bee ee Ae hh 88 CSR ERASER SENSE 16

A. Procedural Background .....----eeere seers 16

B. Requirement that an Evidentiary Hearing is

Appropriate Under Habeas Law .....------- 17

C. Applicability of Summary Judgment Procedures 19

I. PRETRIAL ISSUES ..----ccccccsssseeete en 20

A. Claim XXV: Prosecutor Improperly Used

Peremptory Challenges to Exclude Jurors With

Reservations About Capital Punishment ..... 20

nsideration

Brooks and Wharton Received for Testimony

| Sepp aries ss plete an v's vas 40

Claim VIII: Improper Admission of

pe 48

2

3

4 lai . issi L Evidence btained

i les 55

5. laim XI: Testi _ Zandt' Mot er

Im es ge oe ha e's 59

6. Claim XII: Prosecution Questioning Defense

Witness Re: Devil Worship............ 61

D. Claims VI and VII: Claims Regarding

Petitioner’s N ES 63

1. im VI: I Admission of Petitioner’

Statement to Law Enforcement Officers .. 63

2. Claim VII: Warrantless Arrest ......... 71

: lai III: Petiti *s Absence From Trial .. 72

II. GUILT PHASE INSTRUCTIONS: CLAIMS XIV, XVI,

EEE gn go ccccncccccccese 74

A. Clai V: Accomplice Instructions ........ 75

B. Claim XVI: Instructions Failed to Distinguish

Between Degrees of Murder ............... 79

C. Claim XIX: Failure to Instruct that Felony Murder

Doss — Apply to Assault with a Deadly

pet tt TN et So Oe ee Se eee eee eee ae ee ee

Claim X XX: Irrelevant Instructions at Guilt Phase !

: Refusal to Give Instructions Proffered

Ss ie EOE AR a 85

: i Failed to:Give Required

D.

E.

F. ]

G.

eeeeeveeeeeeeeeeeeeeeeeeee

68

IV. MISCELL P ISSUES ..... 96

V.

A.

B.

H.

Claim XV: _ Insufficient Evidence .....-.---:: 96

Claim XVIII: Failure to Sequester Jury ...--- 98

Claim XXIV: Caldwell Error ....-----+-++++: 99

I

Claims XXVIL, XXVIII: Challenges to Evidence

Admitted at Penalty Phase ......----+++++: 102

1. Claim XXVIL: Admission of Evidence re: Facts

Underlying Petitioner's Prior Convictions 102

2. Claim XXVIII: Admission of Evidence in

Aggravation Without Proper Notice .... 109

Claim XXIX: Prosecutor Committed Misconduct in

Examining Defense Miti gation Witnesses and During

Closing Argument ...... iakeaneaenese hs 112

Instruction Error ......----eeseeeeeeeente 124

1. Claim XXX: Factors in Aggravation Artificially

Inflated by Instructions ........--+-+- 124

2. Claim XXXI: California Statute Overly Broad

and Vague.....--e-eseeeesessessces 126

3. Claim XXXII: Tnal Judge Failed to Instruction

that the Jury Could Consider_in Mitigation

Sentences Given to Co-defendants ..... 128

—

4. Claim XXXII: Trial Judge Refused to Modify

RS rer 130

Unnecessary Factors from Jury.

Consideration ......---eeeeeeeeteens 131

6. Claim XXXV: Failure to Instruct on Petitioner's

Decision Not to Testify ......--+--+-: 133

Claims XXXVI and XL: Trial Judge Committed

Error When He Caused Jury to Reveal its Numerical

Division and Gave Incorrect Response .....- 134

Claim XXXVII and X XXVIII: Ineffective Assistance

of Trial and Appellate Counsel and Petitioner's

Incompetence To ist Trial Counsel ...... 137

Claim XLI: Trial Judge Improperly Denied

Petitioner's Automatic Motion for Modification of

Pematy oc caro ccccscceseessssssnssesss 152

Claim XLII: California Statute is Unconstitutional in

69

Practice and Application ................. 155

FA AL BACKGR

The court gives here only a summary sketch of the factual

background of the capital crime for which petitioner was

convicted. This background information regarding the guilt and

penalty phases is taken nearly verbatim from the opinion of the

California Supreme Court. People v. Morris, 53 Cal.3d 152,

175-179, 279 Cal.Rptr. 720, 730-733 (1991) disapproved in

part, People v. Stansbury, 9 Cal. 4th 824, 38 Cal.Rptr. 2nd 394

(1995).~ Respondent’s summary judgment motion contains a

discussion of the background information, while none of

petitioner’s pleadings submitted in this case do. A detailed

discussion of the facts pertinent to each claim, where necessary,

is given in the individual sections.

A. Guilt Phase

The body of Rickey Van Zandt was found face down at the

bottom ofa hill by Sierra County law enforcement officers. His

skull was crushed; he had been beaten to death. Petitioner

admitted on several occasions before and after his arrest that he

had hit Van Zandt over the head at least 13 times with a rock

and a stick in order to steal his van. After striking the fatal

blows, petitioner left the scene in the van with his two female

companions and drove out of the state, where he was

apprehended. At his trial, petitioner repudiated his numerous

admissions of guilt and blamed his companions for Van Zandt's

murder. The jury rejected this testimony and found him guilty.

After it heard penalty phase evidence that focused on

petitioner’s prior offenses of attempted rape and kidnaping, it

returned a verdict of death.

On September 9, 1985, petitioner began hitchhiking from

Sacramento toward the north shore of Lake Tahoe. He was

accompanied by his girlfriend, Avette Barrett, and her sister,

Allison Eckstrom. The three were picked up by Rickey Van

Zandt in his van on September 11 or 12. They accompanied

1. After independently reviewing the record, the court finds the

summary of events contained in the opinion of the California Supreme Court

to be accurate.

70

him to Truckee, where he stopped at a store and went in,

leaving his car keys in the ignition. While Van Zandt was in

the store, petitioner suggested that he and his companions steal

the van. Eckstrom pulled out a knife from a pouch behind the

passenger seat and petitioner suggested he could "stick" Van

Zandt and they could take the van. The women expressed

reservations. Petitioner then suggested taking Van Zandt to a

nearby river and stabbing him there.

When Van Zandt returned to the van, he and petitioner

begin fishing. He told the women that he would get behind Van

Zandt while they were fishing and "get him." Barrett replied,

"Whatever," and Eckstrom said it was good that she and Barrett

would not have to see it. Petitioner took the knife and went

down to the river. When petitioner and Van Zandt returned 20

to 30 minutes later, petitioner explained to Eckstrom that he had

not been able to stab him because he could not get behind him.

Van Zandt, who had been drinking, continued to do so

while having dinner with petitioner and the women in the van.

After dinner, Van Zandt lay down on a bed in the rear of the

van. At petitioner's request, the women left. Emerging a few

minutes later, petitioner announced: "He's out." He put his arm

around Barrett and asked Eckstrom for a rock. He rejected her

choice of rocks and directed her to pick up another. He took the

rock from Eckstrom, told Barrett he loved her, and said he was

going to hit Van Zandt on the head.

Petitioner reentered the van. Eckstrom and Barrett heard

Van Zandt exclaim, "Ouch, that hurts, stop," and then heard

smacking sounds ("like someone hitting amelon") and screams.

Petitioner later told Eckstrom that he had hit Van Zandt on the

head 13 times with the rock. Fifteen to twenty minutes later,

the women observed Van Zandt's body drop out of the van.

Covered with blood, petitioner emerged and dragged the body

to the front of the van. Van Zandt was still alive. He was

moaning; blood and brain fluids oozed from his head.

Petitioner dragged Van Zandt's body from the area of the

van and rolled it down a slope. He went down to the body and

looked through Van Zandt's pockets. He told Barrett that he

was searching for a wallet.

Van Zandt continued moaning and holding his head.

Eckstrom, who had been asked by petitioner to watch the body,

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called out that it was moving. Petitioner replied that he already

knew this. He picked up a stick, lifted it over his head, told

Van Zandt that he was sorry, and hit him on the back of the

head 3 times. Van Zandt collapsed to the ground. As the three

drove away in Van Zandt's van, Eckstrom observed him still

lying on the ground, quivering.

Van Zandt's dead body was found September 17, five or

six days after he was left at the bottom of the slope. A post

mortem examination established that he died from massive

trauma to the skull. His head was stationary when the trauma

was inflicted. There were fragments of wood in his brain. His

injuries were consistent with the infliction of nine to fourteen

blows with a blunt object such as a rock or stick.

After leaving Van Zandt, petitioner and the two women

drove around the Western and Central United States, eventually

entering Nebraska. They used credit cards found in the glove

compartment of the van to make purchases. On September 14,

they picked up hitchhiker Tom Logan. Eckstrom told Logan

that petitioner had killed Van Zandt. Petitioner asked Logan

whether he had noticed the blood and brain tissue in the van and

explained that he had killed Van Zandt in order to steal his

vehicle. Eckstrom told Logan that they "really rocked and

rolled him." Later, at a campground, petitioner told Logan that

he had been "kind of coerced into killing this man." According

to petitioner, he merely wanted to knock Van Zandt out, but

Barrett wanted to kill him. Logan fled the trio and called the

police. The three were arrested the next day. Among the items

seized at the time of arrest were petitioner's jeans, which were

spattered above the knees with blood.

Shortly after he was taken into custody, petitioner asked to

speak to an officer. He agreed to make a statement. When

permitted to talk to Barrett before his interview, he assured her

that he would not "let [her] suffer for something [she] didn't

do."

In an hour interview with officers, petitioner admitted

hitting Van Zandt on the head 12 to 14 times with a rock and a

stick. He described the rock as the size of a softball. He first

stated that he might have talked about killing Van Zandt to

acquire the van, but then modified his statement to say that he

only wanted to knock him out and tie him up. He stated that

Barrett and Eckstrom told him not to do anything to Van Zandt,

but that he told them to "take off" while he "finished what [he

was] going to do." He said that after the women left, he

72

"knocked the man out and pulled him off to the side of the hill."

According to petitioner, he hit Van Zandt with the stick when

he started to get up, swinging the stick like a baseball bat.

Later, while in custody in California, petitioner wrote a

letter to Barrett. The letter was postmarked October 7, 1985,

and was intercepted by jail authorities the next day. It stated in

part: "I've killed once for you and if I have to I'll do it again!!!

And you know that I can and I don't need a rock to do it either."

Petitioner also acknowledged in front of two other Sierra

County jail inmates that he had "bashed" a man's skull with a

rock 13 times.

In defense, petitioner testified on his own behalf. He

denied killing Van Zandt, claiming that he had admitted doing

so only to protect Eckstrom and Barrett. Petitioner stated that

Van Zandt was killed by the two women when he tried to rape

Barrett. According to petitioner's testimony, Van Zandt had

returned to the van while petitioner was still fishing. When

petitioner later returned, he found Eckstrom upset and Barrett

crying. Both women had blood on their dresses. Barrett

explained that she had killed Van Zandt by hitting him with a

rock when he had tried to rape her in the van. Petitioner then

pulled Van Zandt, still alive, out of the van. Eckstrom hit him

with a stick and mumbled that she had killed him.

A serologist called as a defense expert testified that she

had found traces of semen on Van Zandt's underwear; however,

she conceded on cross-examination that these traces could have

- been deposited anytime since the underwear was last laundered,

that they could have been deposited by a partial voiding of the

bladder upon death, and that they were not necessarily

deposited by ejaculation. She found no semen on Van Zandt's

jeans.

Several female Nevada County jail inmates also testified -

to statements made by Barrett implying that petitioner was

taking responsibility for Van Zandt's murder out of misplaced

love for her. All three conceded, however, that Barrett had

made inconsistent statements about the murder. One witness

offered her opinion that Barrett was a liar.

At the close of the guilt phase, the jury found petitioner

guilty of first degree murder and robbery and further found as

~ a special circumstance that the murder was committed while

petitioner was engaged in the commission of a robbery.

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B. Penalty Phase

In aggravation, the prosecution introduced petitioner’s

prior felony convictions. Petitioner was convicted in 1978 of

kidnaping, attempted rape, and assault with intent to commit

rape on a 15 year old girl. He was also convicted in 1980 of

stealing a car and kidnaping its driver, a61 year old woman. In

mitigation, the defense presented evidence of petitioner’s

troubled childhood. He was hyperactive and unable to read

until he was 15. He was harshly disciplined by his parents and

choked by a teacher. Petitioner had once helped people

involved in a car accident at some risk to his own safety and

had saved his brother’s life when he suffered a heart attack.

The defense also presented evidence of petitioner’s artistic

ability, his love for animals, and his leadership in the Boy

Scouts.

Two experts with experience as prison officials testified

that petitioner would be a successful life prisoner. They

observed that he had developed work skills while in jail

(landscaping and sewing) and had learned the deaf alphabet to

assist deaf prisoners. However, he had also been involved in a

stabbing incident. A psychologist testified that petitioner has

a mild-to-moderate brain dysfunction. In her view, although

petitioner knew the difference between right and wrong at the

time of the offense, he lacked the ability to control his conduct

because the brain dysfunction rendered him unable to

understand the long-term consequences of his acts. <A

psychiatrist testified that petitioner had a borderline personality

with dependent and antisocial features and an atypical brain

syndrome. He attributed petitioner’s “antisocial behavior’ to

his brain condition and psychological disorders.

PROCED BACKGR'

A. State Court

On February 28, 1986, an information was filed in the

Sierra County Superior Court charging petitioner with Count 1,

murder (Cal. Penal Code § 187), Count 2, robbery (Cal. Penal

Code § 211), Count 3, car theft (Cal. Veh. Code § 10851). In

connection with the murder charge, it was alleged as a special

circumstance that the murder occurred while the petitioner was

engaged in the commission of a robbery and that petitioner

74

within the meaning of Cal. Penal Code § 12022(b). It was

further alleged that petitioner had been convicted of two prior

serious felonies within the meaning of Cal. Penal Code § 667(a)

and served a prior separate prison term within the meaning of

Cal. Penal Code § 667.5(b).

On January 29, 1987, a corrected, amended information

was filed. The amended information charged petitioner with

the same offenses as alleged in the amended information and

corrected a typographical error contained in the January 20,

1987, information.

On June 22, 1987, the jury found petitioner guilty of first

degree murder and robbery. The special circumstances and the

weapon allegations were found to be true. On the same day,

petitioner moved to waive the jury trial as to the prior serious

felony and prior separate term allegations. On July 7, 1987, the

court found the allegations of a prior serious felony and prior

separate prison terms to be true. On July 7, 1987, the penalty

phase commenced. On July 17, 1987, the jury determined the

appropriate penalty to be death.

Following his conviction, petitioner filed an automatic

appeal to the California Supreme Court. On March 28, 1991,

the California Supreme Court affirmed the judgment in all

respects. People v. Mormis, §3 Cal.3d 152, 279 Cal.Rptr. 720

(1991). Justices Mosk and Broussard filed separate opinions

dissenting from the affirmance of the guilt and penalty

judgments. Petitioner filed a timely petition for certiorari in the

United States Supreme Court. The Court denied the petition on

November 12, 1991. Morris v. California, 112 S.Ct. 421

(1991).

On September 7, 1990, a habeas corpus petition was filed

75

on petitioner's behalf in the California Supreme Court. The

California Supreme Court denied the petition on the merits and

without comment on December 13, 1990. On December 1,

1995, a second petition for writ of habeas corpus was filed in

the California Supreme Court on petitioner's behalf. On

December 6, 1995, the California Supreme Court denied the

petition on the merits and based on a procedural bar, citing In

re Clark, 5 Cal.4th 750, 767-782 [successive petitions], 783-787

[delay], 797-798 [exceptions] (1993).

B. Federal.Court

On March 27, 1992, petitioner filed an application for

appointment of counsel and request for stay of execution in this

court. On August 12, 1992, counsel was appointed to represent

petitioner. After several delays and court orders thereon, on

June 15, 1993, counsel filed a petition for writ of habeas corpus

on petitioner’s behalf in this court. On December 6, 1993, this

court issued an order staying the case to allow petitioner to

exhaust his state remedies.

Following the California Supreme Court’s denial of his

second state petition for writ of habeas corpus, petitioner

returned to federal court and on January 17, 1996, he filed a

first amended petition for writ of habeas corpus. In mid-July

1996, the court received a letter from petitioner requesting that

his federal habeas proceedings be withdrawn. During the initial

hearing to confirm petitioner’s desires in this regard, petitioner

requested that he be permitted to “withdraw his withdrawal.”

Over respondent’s objection, the federal habeas proceedings

were ordered to proceed.

In respondent’s summary judgment motion filed May 15,

1996, respondent argued that all claims raised in petitioner’s

second state habeas petition were procedurally barred because

the California Supreme Court found that they were not timely

raised pursuant to In re Clark, 5 Cal.4th 750 (1993).

Respondent also argued that several other claims raised in

petitioner’s state appeal were procedurally barred because the

California Supreme Court rejected them because of petitioner’s

failure to object at trial. Respondent also argued that several

other claims were not exhausted, and should be stricken.

On May 27, 1997, this court issued findings and

recommendations addressing these threshold arguments. The

undersigned recommended that respondent’s motion to default

76

claims raised in the second state habeas petition with respect to

a timeliness bar be finally granted as follows:

Claim VIII — Evidence that the trial court had initially excluded

was erroneously admitted in violation of due process;

Claim XVII — Petitioner was deprived of his right to a

unanimous jury determination,

Claim XXXVII (A, C, D, E, F, 1, J, K, L, N, O, P) — Several

allegations of ineffective assistance of counsel:

A. Counsel failed to challenge for cause jurors

whose bias was unquestionably shown and to

exercise peremptory challenges against these jurors.

C. Counsel failed to investigate and present

background evidence concerning Avette Barrett and

Allison Eckstrom.

D. Counsel failed to investigate and present

background evidence concerning jailhouse

informants Wharton, Weaver and Anthony Brooks.

F. Counsel failed to investigate and present

background evidence concerning Ricky Van Zandt.

F. Counsel failed to investigate and challenge the

forensic evidence the prosecution presented at trial by

consulting with appropriate defense experts and

challenging the conclusions at trial of the forensic

experts.

I. Counsel failed to investigate the effect of

petitioner's drug use on his mental state at the time of

the alleged homicide.

J. Counsel Shattuck's failing health materially

interfered with his ability to zealously defend

petitioner.

K. Counsel did not investigate the constitutional

validity of petitioner's prior convictions and

nonetheless stipulated to their admissibility.

L. Counsel failed to object to the admissibility of

excludable evidence, to seek the admission of

77

favorable evidence, to consult with necessary and

appropriate experts, and to formulate and submit

appropriate instructions at both phases of trial. -

N. Counsel failed to uncover and challenge the

conflicts of interest suffered by the Sierra County

District Attorney's Office, which gave immunity to

Barrett and Eckstrom, and to seek its removal as the .

prosecuting agency.

O. Counsel failed to investigate the capital charging

policies of the Sierra County District Attorney's

Office and to discover that those policies were

arbitrary and capricious and violated constitutional

standards.

P. Appellate counsel was ineffective for failing to

investigate and raise the issues listed above.

Claim XXXVIII - Petitioner lacked competency to stand trial;

Claims XXXVII (B, G, H, M) and XXXVIII were ordered

procedurally defaulted pending a final determination of the

miscarriage of justice exception (penalty phase and competency

to stand trial claims only) to the procedural default doctrine.

Because those claims will be discussed herein, the court does

not describe them at this point.

This court further recommended that respondent’s motion

to dismiss as procedurally defaulted the following claims raised

in petitioner’s state appeal be granted in part on the grounds of

failure to object or timely object at trial as follows:

Claim III -- Admission of evidence regarding escape attempt;

Claim IX -- Admission of Barrett letter violated Best Evidence

Rule and was more prejudicial than probative);

Claim XI -- Testimony of Van Zandt’s mother should not have

been admitted;

Claim XII -- Trial court improperly required disclosure of

defense county jail inmate witnesses.

This court recommended that Claim XXIX (challenges to

prosecutorial misconduct in connection with questioning of

Warden White and Dr. Carroll), as well as prosecutorial

misconduct in connection with closing argument alleged in

paragraph D, E and F, should be procedurally defaulted, but the

court reserved its miscarriage of justice analysis on Claim

78

Finally, the undersigned recommended that certain claims

be stricken because these claims remained unexhausted even

after petitioner had returned to state court a second time for the

purpose of exhaustion. The undersi gned recommended that the

district judge strike Claims VII (ineffective assistance of

counsel in failure to obtain an arrest warrant) and XVI

paragraph G ( mental state jury instructions). The court

recommended that respondent’s motion to strike Claim XVI,

paragraphs B, C and H as unexhausted be denied.

On July 2, 1997, the district court adopted these findings

and recommendations in their entirety.

APPLICABILITY OF THE AEDPA

This action was filed prior to the enactment of the

Antiterrorism and Effective Death Penalty Act. Therefore, the

Chapter 153 amendments to 28 U.S.C. §2254 do not apply to

the adjudication of this case. Lindh v. Murphy, ___ oo a

117 S.Ct. 2059 (1997). Therefore, the standards utilized

throughout these Findings and Recommendations are those of

the pre-AEDPA.

SUMMARY JUDGMENT STANDARDS IN HABEAS

CORPU

A. Procedural Background

Habeas corpus review is not a civil action “from scratch.”

Federal courts are not to engage in a general retrial of all claims

tried and untried in the state criminal proceeding. The

petitioner has the burden to specifically allege and demonstrate

error of constitutional proportion, McKenzie v. McCormick, 27

F.3d 1415, 1418 (9th Cir. 1994), although the court has the

ultimate “burden” to determine for itself whether the error was

harmless, or whether it has grave doubt that such error was

harmless. Importantly, petitioner may not speculate or

hypothesize about alleged error--petitioner must possess a

colorable factual basis for claimed constitutional error before

the claim may stand as a basis for evidentiary hearing and the

possible overturning ofa state conviction, Ortiz v. Stewart, __

F.3d ___, 1998 WL349467, *8 (9th Cir. 1998); Williams v.

Calderon, 52 F.3d 1465, 1484 (9th Cir. 1995); the petitioner

79

must allege facts that point to the “real possibility” of

constitutional error. Blackledge v. Aliison, 431 U.S. 63, 75

(n.7), 97 S.Ct. 1621, 1630 (1977); Wacht v. Cardwell, 604 F.2d

1245, 1246 (9th Cir. 1979); there must be some evidentiary

“spelling out” of the constitutional claim, Gentile v. Mancusi,

426 F.2d 238, 239 (2d Cir. 1970), i.e. the pleader must lay a

foundation for proper factual averments and competent

evidence must support the averments. Davis v. Bomar, 344

F.2d 84, 86 (6th Cir. 1965). The district court is afforded "wide

latitude" in assessing the need for an evidentiary hearing. Ortiz,

supra.

Nor is petitioner entitled to speculate about a claim in the

first instance, and then request investigative monies and

discovery to determine whether there is any factual basis for the

speculated claim. The court’s point has been put best by Aubut

v. Maine, 431 F.2d 688, 689 (ist Cir. 1970), adopted by

Calderon v. Nicolaus, 98 F.3d 1102, 1106 (9th Cir. 1996):

“Habeas corpus is not a general form of relief for those who

seek to explore their case in search of its existence.” This is

true even for the ordinary civil action where a plaintiff may not

allege claims without a good faith basis for asserting facts and

law. Fed. R. Civ. P. 11. It is even more true where the

petitioner must sign the petition under penalty of perjury, and

must give as specific and true a basis for the claimed error that

he can muster at the time.

B. Requirement that an Evidentiary Hearing __is

Appropriate Under Habeas Law

In order to avoid summary adjudication of claims in

habeas, petitioner first has to be entitled to an evidentiary

hearing on the claim. Not every habeas claim warrants a

factual hearing. Thus, for example, claims about erroneous jury

instructions, error in evidence admission/exclusion, sufficiency

of the evidence, most determinations of “prejudice,” etc. are all

claims that are reviewed from the record of the trial itself.

Moreover, for certain claims, that the courts have held not

cognizable in habeas, e.g., “psychiatric expert malpractice”,

there will be no factual development since the claim is not

viable in the first instance. Finally, in many instances, a state

court’s factual findings are entitled to a presumption of

correctness. 28 U.S.C. § 2254(d); Miller v. Fenton, 474 U.S.

104, 111-112, 106 S.Ct. 445, 450 (1985). Even ifa claim is of

80

a type that might warrant an evidentiary hearing, if petitioner

has defaulted on proper development of the claim in state

proceedings, there will be no evidentiary hearing. Keeney v.

Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715 (1992).

A federal court must hold an evidentiary hearing on

a constitutional claim only when the state court has

not provided a hearing, the petitioner alleges specific

facts which, if proved, would entitled him to relief,

and there is a genuine factual dispute in the record.

‘[BJold assertions on a critical issue in a habeas

petition, unsupported and unsupportable by anything

else contained in the record, are insufficient to

warrant an evidentiary hearing.’ The petitioner must

set forth specific allegations of fact, not mere

conclusory allegations. (citations omitted).

Johnson v. Scott, 68 F.3d 106, 112 (Sth Cir. 1995)(capital case).

This court, of course, follows binding Ninth Circuit

precedent on the issue of the requirement for an evidentiary

hearing. See Hendricks v. Vasquez, 974 F.2d 1099 (9th Cir.

1992) et al., for the proposition that “a petitioner is entitled to

an evidentiary hearing upon a showing that the allegations

contained in a petition would entitle the petitioner to relief and

no full and fair hearing was held by the state court on those

facts.” See also, Jones v. Wood, 1 14 F.3d 1002 (9th Cir. 1997).

While certainly correct and binding, Hendricks and Jones beg

the issue here. The issue herein for many claims is whether the

allegations of the petition are sufficiently colorable to warrant

an evidentiary hearing. Williams v. Calderon, supra.

Of course, if one is not entitled to a factual hearing, one is

not entitled to discovery or investigative monies for the claim--

there would be no purpose served for these investigative

procedures. See, Deputy v. Taylor, 19 F.3d 1485 (3rd Cir.

1994).

Discovery is only permitted when petitioner demonstrates

good cause for the discovery. Rules in Habeas Corpus

Proceedings, Rule 6; Campbell v. Blodgett, 982 F.2d 1356,

1358 (9th Cir. 1993). See also McDaniel v. U.S.D.C., 127 F.3d

886 (9th Cir. 1997) (discovery in habeas corpus actions is

within the discretion of the district court and is permitted upon

a showing of good cause). While once a colorable claim is

stated, liberal discovery should be allowed, Liebman, F eral

Habeas Corpus Practice and Procedure, section 19.4(e);

McDaniel, supra, habeas corpus discovery has never allowed

81

fishing expeditions. Ward v. Whitley, 21 F.3d 1355, 1367 (Sth

Cir. 1994)(capital case). Thus, if petitioner has not

demonstrated the necessity for discovery, the asserted lack of

discovery is not a factor in ruling on a motion for summary

judgment or adjudication. The good cause requirement for

discovery dovetails with the requirement to have first factually

stated a colorable claim which entitles a petitioner to a factual

hearing, i.e. if petitioner has not set forth a colorable claim in

the petition, he is entitled to neither discovery nor an

evidentiary hearing. The Supreme Court recently confirmed

this court’s view of the availability of discovery in habeas

actions. Bracy v. Gramley, _ U.S. __, 117 S.Ct. 1793

(1997) (discovery available only for good cause, and the

Supreme Court “emphasized” in Gramley that petitioner therein

had shown good cause because he had specifically supported

his request with colorable evidence pointing to a real possibility

of constitutional error).

C. Applicability of Summary Judgment Procedures

The summary judgment procedure of Fed. R. Civ. P. 56 is

properly invoked in a habeas review proceeding, Blackledge v.

Allison, supra, and assuming that an evidentiary hearing would

otherwise be potentially appropriate, petitioner must

demonstrate that there are material, disputed issues of fact

which preclude summary judgment.* That is, if petitioner has

stated a non-speculative claim for which an evidentiary hearing

is necessary, and there are established material facts in dispute,

either by virtue of legitimate facts pled in the petition or

legitimate evidence outside the record neither of which is

barred by Keeney, petitioner will be entitled to an opportunity

to fully develop those claims, including an evidentiary hearing,

before any final ruling on the claims. Indeed, on motion for

summary judgment, the evidence, and all reasonable inferences

therefrom, must be viewed in the light most favorable to the

non-moving party (generally the petitioner). Celotex Corp. v.

Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986).

2. The Federal Rules of Civil Procedure apply in habeas

proceedings, and it is important to note that the ordinary civil rules apply in

the absence of established habeas rules or procedures. Fed. R. Civ. P. 81

(a)(2).

—

82

However, in opposing summary judgment/adjudication, like the

ordinary civil litigant who will bear the burden of proof at trial,

petitioner must point to the material and disputed facts which

will preclude summary judgment. Id. Jt is insufficient for

petitioner to argue that there are disputed facts without

proferring any evidence of those facts. “{if a motion for

summary judgment is made] [petitioner] will then be required

to produce some contrary proof indicating that there is a

genuine issue of fact to be resolved by the District Court or to

explain his inability to provide such proof.” Blackledge v.

Allison, 431 U.S. at 80-81, 97 S.Ct. at 1632-1633. While the

court does not task petitioner with proving his case at this

juncture, petitioner must point to some probative, colorable

facts which preclude entry of judgment. “Tf the evidence [put

forth by the non-moving party] is merely colorable, or is not

significantly probative , summary judgment will be granted.”

Anderson v. Liberty Lobby, 477 US. 242, 249-250, 106 S.Ct.

2505, 2511 (1986). It is not enough for petitioner to merely

hope that discovery will turn up something which can be put

forward at a factual hearing.

Having detailed the procedural requirements facing the

parties and the court, the court turns to the substantive issues.

I. PRETRIAL ISSUES

A. Claim XXV:_ Prosecutor Improperly Used

Peremptory Challenges to Exclude Jurors With

Reservations About Capital Punishment

Petitioner cites to the well known case of Witherspoon v.

Illinois, 391 U.S. 510, 88 S.Ct. 1770 (1968) to establish the

proposition that the prosecutor may not utilize his peremptory

challenges in such a fashion that non-Witherspoon excludables

were nevertheless excluded from the jury. Witherspoon, and its

companion case, Wainwright v. Witt, 469 U.S. 412, 105 S.Ct.

844 (1985), do not stand for such a proposition, and it has been

rejected on numerous occasions.

Witherspoon/ Witt stands for the following proposition:

A prospective juror may not be excused for her views

concerning capital punishment unless those views

would prevent or substantially impair the

performance of her duties as a juror in accordance

with her instructions and oath. Wainwright v. Witt,

83

469 U.S. 412, 420, 105 S.Ct. 844, 850, 83 L.Ed.2d

841 (1985).

Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992).

However, it is clear that the holdings of those cases apply only

to excusals for cause, and have nothing to do with peremptory

challenges.

However, “we have consistently held that in capital

cases peremptory challenges may be used to exclude

those [prospective jurors] who express hesitancy

about imposing the death penalty but whose

exclusion for cause is forbidden by Witherspoon.”

United States v. Leslie, 783 F.2d 541, 552 n. 18 (Sth

Cir. 1986)(en banc), vacated on other grounds, 479

U.S. 1074, 107 S.Ct. 1267, 94 L.Ed.2d 128 (1987),

aff'd in relevant part, 813 F.2d 658 (Sth Cir. 1987);

see also Sonnier v. Maggio, 720 F.2d 401, 406-07

(5th Cir. 1983), cert. denied, 465 U.S. 1051, 104

S.Ct. 1331, 79 L.Ed.2d 726 (1984); Jordan _v.

Watkins, 681 F.2d 1067, 1070 & n. 2 (Sth Cir. 1982).

Andrews v. Collins, 21 F.3d 612, 628 (Sth Cir. 1994).

See also Brown v. Dixon, 891 F.2d 490, 497-498 (4th Cir.

1989) and Justice O’Connor’s concurring opinion in the denial

of certiorari in Brown v. North Carolina, 479 U.S. 940, 107

S.Ct. 423-424 (1986); Dobbert v. Strickland, 718 F.2d 1518,

1525 (11th Cir. 1983).*

For the reasons discussed above, the court recommends

that this claim be dismissed.

B: Claim XXVI:_ Six Pro-death Jurors Should Have

Been Removed

Petitioner argues violations of the Fifth, Sixth, Eighth and

Fourteenth Amendments because six pro-death jurors (Heard,

Vandermoon, Din, Doran, Chiribel and Brandstad) should have

been removed for cause. However, none of these prospective

jurors actually sat on petitioner’s jury. (RT 5352-5353.)

Petitioner also did not exhaust all of his peremptory challenges.

Morris, 53 Cal.3d at-184-185, 279 Cal.Rptr. at 736.

In Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273 (1988),

3. The Ninth Circuit has not ruled on this issue to the court’s

knowledge.

4

84

the district court erroneously refused to dismiss a juror for

cause. Although the defendant argued that the trial court’s error

violated his Sixth and Fourteenth Amendment right to an

impartial jury and his Fourteenth Amendment right to due

process by requiring him to use a peremptory challenge he

otherwise would not have needed to use, the Supreme Court did

not reverse his conviction. It reasoned, first, that the right of

peremptory challenge is not constitutional, Ross, 487 U.S. at

88, 108 S.Ct. at 2278, and second, that Ross received and used

all the peremptory challenges to which Oklahoma entitled him,

concluding that “the ‘right’ to peremptory challenges is ‘denied

or impaired’ only if the defendant does not receive that which

state law provides.” Id. at 89, 108 S.Ct. at 2279. The defendant

did receive the peremptories to which he was entitled under

state law, and exercised them to remove the suspicious juror.

As a consequence, the offending juror did not sit on the jury

that convicted him. Ross, 487 U.S. at 85-86, 108 S.Ct. at 2276-

77. Therefore, the court held that the “compulsion” to use a

peremptory challenge to unseat a juror that defense counsel

believes should have been removed for cause does not state a

federal constitutional claim.

However, in United States v. Martinez-Salazar,__F.3d_,

1998 WL 276138 (9th Cir. 1998), the Ninth Circuit limited

Ross to the Sixth Amendment context, and held that the

“compulsion” to use a peremptory challenge for a juror that

should have been challenged for cause rose to the level of a

Fifth Amendment violation. Such a ruling does not aid

petitioner for two reasons. First it is a new rule which cannot

be applied to petitioner’s case. By virtue of reading the dissent

in Martinez-Salazar, it cannot be said that all reasonable jurists

would agree that the Ninth Circuit's holding is dictated by

precedent. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060

(1989). More importantly, petitioner was not compelled to

utilize a peremptory challenge for a juror who should have been

excused for cause. Petitioner did not use all his peremptories.

If a party fails to utilize all available peremptory

challenges, and a previously challenged-for-cause juror

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