Opinion
No. CIV S-07-1449 GEB GGH P.
August 3, 2007
ORDER
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondents will be directed to file a response to petitioner's habeas petition.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's application to proceed in forma pauperis is granted;
2. Respondents are directed to file a response to petitioner's habeas petition within thirty days from the date of this order.See Rule 4, Fed.R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed.R. Governing § 2254 Cases;
3. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;
4. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondents' reply, if any, shall be filed and served within fifteen days thereafter; and
5. The Clerk of the Court shall serve a copy of this order together with a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General. 28 USC § 2254 United States District Court PETITION Superior Court of California, County of Sacramento May 18, 2005 35 years to life assault with a deadly weapon (Cal.Penal Code § 4501 — count 1); possession of inmate manufactured weapon (Cal. Penal Code § 4502(a) — count 2) N/A California Court of Appeal, Third Appellate District affirmed September 22, 2006 same as this petition California Supreme court denied unknown same as this petition N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A not N/A concisely briefly facts facts CAUTION: In order to proceed in the federal court, you must ordinarily first exhaust your available state court remedies as to each ground on which you request action by the federal court. If you fail to set forth all grounds in this petition, you may be barred from presenting additional grounds at a later date. you should raise in this petition all available grounds Ground One is stated in Attachment "A" (this page lacks the necessary space to state Ground One) briefly supporting facts are stated in Attachment "A" (this page lacks the necessary space to state the supporting facts) Ground Two is stated in Attachment "A" (this page lacks the necessary space to state Ground Two) briefly supporting facts are stated in Attachment "A" (this page lacks the necessary space to state Ground Two) none briefly N/A none briefly N/A briefly N/A David Muller, P.O. Box 1146, Sacramento, CA 95812 same as above same as above same as above J. Peter Axelrod, 1275 Fourth Street, #341, Santa Rosa, CA 95404 none none N/A N/A
PETITION UNDER FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY District Eastern District of California Name Thomas Prisoner No. Case No. Hill T-33801 207CV1449GEBGGH Place of Confinement Kern Valley State Prison P.O. Box 5103; C2-218 Delano, CA 93216 Name of Petitioner (include name under which convicted) Name of Respondent (authorized person having custody of petitioner) Thomas Hill V. James Tilton The Attorney General of the State of: California 1. Name and location of court which entered the judgment of conviction under attack 2. Date of judgment of conviction 3. Length of sentence 4. Nature of offense involved (all counts) _____________________________________________________________________________ 5. What was your plea? (Check one) (a) Not guilty (b) Guilty (c) Nolo contendere If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details: ______________________________________________________________________________ 6. If you pleaded not guilty, what kind of trial did you have? (Check one) (a) Jury (b) Judge only 7. Did you testify at the trial? Yes No 8. Did you appeal from the judgment of conviction? Yes No 9. If you did appeal, answer the following: (a) Name of court (b) Result (c) Date of result and citation, if known (d) Grounds raised _______________________________________________________________________ (e) If you sought further review of the decision on appeal by a higher state court, please answer the following: (1) Name of court (2) Result __________________________________________________________________ (3) Date of result and citation, if known (4) Grounds raised __________________________________________________________________ (f) If you filed a petition for certiorari in the United States Supreme Court, please answer the following with respect to each direct appeal: (1) Name of court (2) Result __________________________________________________________________ (3) Date of result and citation, if known (4) Grounds raised __________________________________________________________________ 10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this judgment in any court, state or federal? Yes No 11. If your answer to 10 was "yes," give the following information: (a) (1) Name of court (2) Nature of proceeding _________________________________________________________________ (3) Grounds raised _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes No N/A (5) Result (6) Date of result (b) As to any second petition, application or motion give the same information: (1) Name of court (2) Name of proceeding _________________________________________________________________ (3) Grounds raised _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes No N/A (5) Result (6) Date of result (c) Did you appeal to the highest state court having jurisdiction the result of action taken on any petition, application or motion? (1) First petition, etc. Yes No N/A (2) Second petition, etc. Yes No N/A (d) If you did appeal from the adverse action on any petition, application or motion, explain briefly why you did not: _________________________________________________________________ _________________________________________________________________ 12. State every ground on which you claim that you are being held unlawfully. Summarize the supporting each ground. If necessary, you may attach pages stating additional grounds and supporting same. For your information, the following is a list of the most frequently raised grounds for relief in habeas corpus proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you may have other than those listed if you have exhausted your state court remedies with respect to them. However, (relating to this conviction) on which you base your allegations that you are being held in custody unlawfully. Do not check any of these listed grounds. If you select one or more of these grounds for relief, you must allege facts. The petition will be returned to you if you merely check (a) through (j) or any one of these grounds. (a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea. (b) Conviction obtained by use of coerced confession. (c) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure. (d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest. (e) Conviction obtained by a violation of the privilege against self-incrimination. (f) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. (g) Conviction obtained by a violation of the protection against double jeopardy. (h) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled. (i) Denial of effective assistance of counsel. (j) Denial of right of appeal. A. Ground one: Supporting FACTS (state without citing cases or law): ___________________________________________________________________________________________________ ___________________________________________________________________________________________________ ___________________________________________________________________________________________________ ___________________________________________________________________________________________________ B. Ground two: Supporting FACTS (state without citing cases or law): ___________________________________________________________________________________________________ ___________________________________________________________________________________________________ ___________________________________________________________________________________________________ ___________________________________________________________________________________________________ C. Ground three: ____________________________________________________________________________________________________ Supporting FACTS (state without citing cases or law): ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ D. Ground four: ____________________________________________________________________________________________________ Supporting FACTS (state without citing cases or law): ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ 13. If any of the grounds listed in 12A, B, C, and D were not previously presented in any other court, state or federal, state what grounds were not so presented, and give your reasons for not presenting them: ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ 14. Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack? Yes No 15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein: (a) At preliminary hearing _________________________________________________________________________________________________ (b) At arraignment and plea _________________________________________________________________________________________________ (c) At trial _________________________________________________________________________________________________ (d) At sentencing _________________________________________________________________________________________________ (e) On appeal (f) In any post-conviction proceeding _________________________________________________________________________________________________ (g) On appeal from any adverse ruling in a post-conviction proceeding _________________________________________________________________________________________________ 16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time? Yes No 17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Yes No (a) If so, give name and location of court which imposed sentence to be served in the future: ________________________________________________________________________________________________ (b) Give date and length of the above sentence: _________________________________________________________________________________________________ (c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future? Yes No N/A Wherefore, petitioner prays that the Court grant petitioner relief to which he may be entitled in this proceeding. ________________________________________ Signature of Attorney (if any) I declare under penalty of perjury that the foregoing is true and correct. Executed on ________________________________ Date _______________________________ Signature of PetitionerATTACHMENT "A"
Thomas Hill v. James Tilton
GROUNDS FOR RELIEF
(Question #12, Form AO 241)
GROUND ONE:
The trial court abused its discretion and denied petitioner his right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution when it refused to grant petitioner's request to relieve counsel where it was apparent that the continued representation by counsel was likely to result in denying petitioner effective assistance of counsel. See Gideon v. Wainwright, 372 U.S. 335 (1963); Strickland v. Washington, 460 U.S. 668 (1984). SUPPORTING FACTS:
1. Near the conclusion of the prosecution's case and the denial of a motion for mistrial by counsel, petitioner asked the court whether he could say something on the record.
2. The following exchange then took place:
The Court: No. You need to speak to your attorney.
Petitioner: Well, he ain't talking for me. I have been asking to call Fowler from day one for a witness.
The Court: You need to — you need to —
Petitioner: I've sat down and been quiet long enough. He's making him out to be a little guy and harmless, and I know the man. I want the jury to see the guy.
The Court: All right. That's an issue you need to resolve with your attorney. You are represented by counsel, Mr. Hill.
Petitioner: I've been asking him, your Honor.
The Court: Well, you have to —
Petitioner: He's been ignoring me. I've been asking him about it.
The Court: I'm sure he's not ignoring you, but he may not agree with your specific trial strategy on this. (RT 210)
"RT" refers to the reporter's transcript.
3. Discussion continued and the court advised petitioner the issue of whether Fowler testified was a matter that needed to be resolved between he and counsel, that the court was not going to get involved in determining what witness should be called on the part of the defense, and that petitioner needed to discuss the issue with counsel.
4. Petitioner informed the court that "he doesn't want to" and the court replied that "there may be a sound tactical reason for that."
5. The court then recessed and at the following session petitioner asked that his counsel be relieved.
6. A hearing pursuant to People v. Marsden, 2 Cal.3d 118 (1970), was then held out of the presence of the prosecutor.
7. At the hearing, petitioner informed the court that he did not believe counsel was properly representing him because petitioner wanted inmate Fowler, the victim, as a witness, along with inmate Cornealius, who was a later cellmate of Fowler.
8. Counsel had advised petitioner that he did not believe the witnesses would assist him.
9. When asked by the court why petitioner believed the witnesses would assist his defense, petitioner explained that "Fowler can say what happened."
10. Petitioner also explained that Cornealius was "Fowler's cellie shortly after the thing happened" and that Fowler confided in Cornealius what happened."
11. This was the only matter in which petitioner took issue with counsel.
12. After stating his criminal law experience, counsel set forth his rationale for not calling the witnesses:
Defense Counsel: I'll start off with Mr. Fowler.
I believe that if we call Mr. Fowler, all that it would be was that it was, uh — it would be to Mr. Hill's detriment. Because the way I see it, there's three possible scenarios:
The first scenario is that Mr. Fowler gets up on the stand, testifies, and says that Mr. Hill is the person that stabbed him. Which wouldn't help us at all.
The other scenario is that if Mr. Fowler gets on the stand and testifies, and says, yes, I initially assaulted Mr. Hill, I'm the one that initiated the fight; then the down side about that is that Mr. Linthicum [the prosecutor] will start bringing in their affiliations, the gang testimony, and that would be, possibly, his way of assisting or promoting gang or gang activity.
Even though I believe Mr. Hill is not a member of the Aryan Brotherhood, but maybe, possible the Skins. The district attorney will then be bringing forward all this gang evidence that would greatly prejudice Mr. Hill.
The Court: When you say gang, do you mean Mr. Hill's affiliation?
Defense Counsel: Mr. Hill's affiliation. Mr. Fowler's affiliation. How gangs conduct themselves. What is their modis operandi. What gangs are all about in that they commit assaults; in that they see, hear, and distribute methamphetamine or narcotics in through the prison systems; that they basically have hit lists for inmates, that inmates are singled out to be knifed or assaulted.
And with all that —
The Court: Is it your understanding that Mr. Hill and Mr. Fowler are members of — either are or were at the time members of the same prison gang?
Defense Counsel: Uhm, I believe so. But I believe it's more not identified as a gang as such as — is much as they would classify it as a disruptive group.
The Court: I do recall in some conversations regarding the admissibility of evidence in this case, that Mr. Linthicum did indicate there's an undertone of gang motive in terms of this particular alleged assault.
Defense Counsel: And a final thing is that Mr. Fowler could come here and assert the Fifth Amendment in which case that wouldn't even be before the jury.
I don't see any benefit of bringing Mr. Fowler into court.
As to Mr. Cornealius, his testimony would first have to get through the hearsay requirements. Even assuming if the hearsay is able to get through, then I believe it would still open up the door for Mr. Linthicum to start bringing in all the gang evidence to be able to explain why Fowler may have told Mr. Cornealius, or even to explain Mr. Cornealius' testimony.
Because right now, I don't have any information about Mr. Cornealius. I don't know if he was a member of the Skins at that point in time. I don't at this time have sufficient information about Mr. Cornealius. All I do know is that he's serving a life term.
The Court: When you say Skins, this is your disruptive organization?
Defense Counsel: Yeah, that's a disruptive group.
The Court: All right. (RT 208-210)
13. The trial court thereafter found that petitioner was being properly represented, that there was not a breakdown in their relationship of such a kind that would make it impossible for counsel to represent petitioner, and denied petitioner's motion to relieve counsel.
14. The court also found that questions of whether to call the witnesses were tactical decisions of the attorney and that there were "sound tactical reasons as to why these witnesses should not be called."
15. Petitioner contends that given the information presented in the Marsden hearing, the trial court abused its discretion in failing to relieve counsel and appoint new counsel.
16. Defense counsel's remarks demonstrate that he had not interviewed or had someone else interview either Fowler or Cornealius; he did not know what either would testify to or whether they would testify at all.
17. Counsel conceded that one possible scenario was for Fowler to testify that he assaulted petitioner and initiated the fight; that would have been exculpatory evidence that would have coorborated petitioner's later testimony that he was simply defending himself.
18. On the other hand, if Fowler testified that petitioner initiated the fight as counsel indicated was possible, Cornealius may have been able to testify to any inconsistent statements Fowler confided to him.
19. There were only two witnesses to how the confrontation started: Petitioner and Fowler.
20. While fear of the potential prejudicial impact of prison gang evidence would certainly have been a factor counsel would consider in deciding whether to have Fowler and/or Cornealius testify, counsel made that decision without having any definitive knowledge as to what the witnesses' testimony would be.
21. If the witnesses asserted a privilege, or if their testimony would have been unfavorable to petitioner, counsel could simply have chosen not to have the witnesses testify.
22. On the other hand, if Fowler would have testified that he, not petitioner, initiated the confrontation and was the aggressor, favorable evidence that could have affected the outcome of the trial was available.
23. To make an informed tactical choice, counsel would have been required to weigh the potential admission of prison gang evidence against the benefit of Fowler's testimony establishing and/or corroborating a self-defense claim on behalf of petitioner.
24. To make a reasonable tactical judgment, counsel would have had to know how Fowler would testify and then assess his credibility.
25. While the potential for admission of prison gang evidence could conceivably have affected counsel's decision, without knowing how Fowler would testify and without having some feeling for his credibility, counsel was operating in the dark.
26. It is axiomatic that a rational tactical decision cannot be made by counsel unless counsel's decision is an informed one.
27. Defense counsel's decision not to call Fowler was less than informed.
28. Fowler could have been such an extremely impressive and persuasive witness that, notwithstanding any prison gang affiliation or prior convictions, it was likely a jury would have believed him.
29. The only witness who saw any of the confrontation between petitioner and Fowler was Officer Horton from the control booth; and he was 50 to 60 feet away from petitioner's cell and was observing what happened through a window in the cell approximately 9 inches wide and two feet in length.
30. Given these circumstances, a jury may have discounted Officer Horton's testimony that he observed petitioner making jabbing/stabbing motions at Fowler as less than a definitive, complete account of what took place between the two.
31. Officer Horton did not testify he saw the confrontation start; Fowler was there from the beginning.
32. Considering the distance and the visual constraints of looking through a small window from a significant distance, if Fowler testified it was he, not petitioner who initiated the confrontation, the jury may very well have believed Fowler's version and dismissed Officer Horton's version as incomplete and less than entirely credible.
33. Petitioner had various prior convictions that the court ruled could be used for impeachment.
34. The jury obviously knew petitioner was in prison; people who commit crimes go there.
35. It would not have been a surprise to jurors that people inside prisons sometimes belong to gangs and/or do bad things while there; petitioner was on trial for just such an occurrence.
36. Any evidence that petitioner was affiliated with the Skins, a disruptive group or organization as described by counsel, would have been insignificant in view of petitioner's status as a convicted felon serving a prison sentence.
37. Without Fowler to establish a claim of self-defense on behalf of petitioner, there would be no way to establish it except by-petitioner alone through his testimony.
38. Testimony of a prison inmate who is serving a prison term does not stand much of a chance against that of a law enforcement officer who witnessed part of the encounter.
39. It was a foregone conclusion that the jury would believe Officer Horton over petitioner as to whether petitioner was making jabbing/stabbing motions towards Fowler or was merely making defensive gestures to keep him at bay.
40. In addition, the jury had already been exposed to negative evidence concerning prison culture.
41. Evidence showed that Fowler was not completely cooperative following the confrontation, having no willingness to explain how he came to be injured or to blame anyone.
42. The jury was left with the impression that the reason Fowler was not testifying was because doing so would make him a "snitch," the worst thing in prison except a child molester, and a label that could threaten his well being in prison if not his life.
43. It is difficult to imagine how potential gang or disruptive organization testimony could be any more negative than the snitch evidence.
44. Had defense counsel interviewed Fowler and determined that he corroborated petitioner's version of events, his presence in court testifying would have neutralized if not wholly negated the snitch evidence.
45. By failing to at least interview Fowler and Cornealius, counsel was not in a position to make an informed judgment, a reasonable tactical decision as to whether the witnesses would provide favorable testimony to petitioner; and if the testimony would have been favorable, counsel was not in a position to evaluate whether their potential credibility would outweigh any risk from potential prison gang or disruptive organization evidence being admitted during the trial.
46. Counsel was manifestly operating in a vacuum in making these tactical decisions; under the circumstances his decisions were not reasonable.
47. Making tactical decisions without knowing what the witnesses would testify to, and without being able to make any realistic assessment as to their potential credibility, was likely to result in foreclosing a meritorious claim of self-defense on behalf of petitioner.
48. In other words, it was evident from what was presented at the Marsden hearing that failure to relieve counsel would substantially impair his right to assistance of counsel.
49. In denying petitioner's Marsden motion, the court abused its discretion and denied him his right to the effective assistance of counsel that he was entitled to under the Sixth and Fourteenth Amendments to the United States Constitution.
GROUND TWO:
Should this court find that petitioner made a request for self-representation, the trial court abused its discretion and denied petitioner due process of law under the Sixth and Fourteenth Amendments to the United States Constitution when it failed to consider all relevant factors in ruling on petitioner's request. See Faretta v. California, 422 U.S. 806 (1975).
SUPPORTING FACTS:
1. The trial court treated petitioner's request to relieve counsel as a request for substitution of attorneys pursuant to People v. Marsden, 2 Cal.3d 118 (1970).
2. Near the conclusion of the prosecution's case, the trial court noted that counsel had indicated in chambers that petitioner had an issue he wanted to raise with the court.
3. Counsel stated "I believe he would be requesting a Marsden motion."
4. The trial court then made the following inquiry of petitioner:
The Court: All right. Mr. Hill, what Mr. Muller is indicating is that it is your desire that this court consider discharging Mr. Muller.
Is that correct?
Petitioner: Yes.
The Court: All right. And you're asking that Mr. Muller be relieved?
Petitioner: Yes.
The Court: As the result of some breakdown between the two of you?
Petitioner: Yes. (RT 204)
5. Petitioner did not request that new counsel be substituted for Mr. Muller.
6. The hearing described in ¶¶ 6-14 of Ground One then took place and the court eventually denied the "Marsden motion."
7. The trial court did not explain what a Marsden motion was to petitioner.
8. At no time during the hearing did petitioner request that new counsel be substituted for Mr. Muller.
9. The state court record is not entirely clear as to whether petitioner was seeking new counsel or wanted to represent himself.
10. Petitioner asserts that he did not specifically request that new counsel be appointed because he was requesting that he be permitted to represent himself.
11. While requests for self-representation must be clear and un-equivocal, there was nothing equivocal about petitioner's assertion that he wanted counsel relieved/discharged.
12. Petitioner had a federal constitutional right to waive counsel and represent himself.
13. When asked by the court, petitioner unequivocally stated that he wanted defense counsel relieved/discharged.
14. Petitioner's request to represent himself was untimely because it was made after the commencement of his trial; and granting the request was a matter within the sound discretion of the trial court.
15. A trial court faced with an untimely request for self-representation must consider such factors as "the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." People v. Windham, 19 Cal.3d 121, 128 (1977).
16. Here, the court considered petitioner's reasons for requesting to represent himself and the quality of counsel's representation; however, none of the other factors were considered by the court.
17. The court made no finding as to petitioner's competency to represent himself, his proclivity to substitute counsel, or the disruption or delay that might follow from petitioner's self-represntation.
18. Petitioner was entitled to a decision regarding his request for self-representation which was made in the exercise of the court's informed discretion.
19. By failing to consider all of the required factors, the court did not exercise informed discretion in denying petitioner's request to represent himself; the court thus abused its discretion and erred.
20. Had petitioner's motion to discharge his counsel been granted and he represented himself, he certainly would have called inmate Fowler to testify; and he may have also called Cornealius.
21. As noted in ¶ 22 of Ground One, Fowler may have testified that he, not petitioner, initiated the confrontation; that would have corroborated and strengthened petitioner's claim of self-defense and may have strengthened the defense to such a degree that it would have been believed by at least some members of the jury.
22. Officer Horton had a limited ability to see into the cell from a significant distance through a narrow window.
23. Officer Horton's testimony that appellant was making stabbing/jabbing motions and Fowler was making defensive gestures thus may very well have been deemed less credible since the only two percipient witnesses to the entire event (petitioner Fowler) would have testified to the contrary.
24. But even if Officer Horton's testimony was believed, the jury may have still concluded under all the facts and circumstances that petitioner did not exercise excessive force because Fowler had first attempted to assault petitioner with the weapon.
25. And even if Fowler had testified petitioner was the aggressor, Cornealius may have been able to testify that Fowler had confided to him that it was he, Fowler, who initiated the fight.
26. For the reasons stated in ¶¶ 20-25 above, there is a reasonable probability that petitioner's trial would have had a more favorable outcome had he represented himself.