# Appendix — Woodford v. Morris

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0833%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1075

## Text

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.”

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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 Evidenc

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0833%3A2. Public record. Not legal advice.