Sanders v. Ratelle

• Citation: 21 F.3d 1446
• Decision Date: 04 April 1994
• Docket Number: No. 93-55134,93-55134
• Parties: Sheldon SANDERS, Petitioner-Appellant, v. John RATELLE, Warden; Daniel E. Lungren, Attorney General of the State of California, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1446

21 F.3d 1446

Sheldon SANDERS, Petitioner-Appellant, v. John RATELLE, Warden; Daniel E. Lungren, Attorney General of the State of California, Respondents-Appellees.

No. 93-55134.

United States Court of Appeals Ninth Circuit.

Argued and Submitted October 8, 1993.

Decided April 4, 1994.

Rowan K. Klein, Klein & Crain, Santa Monica, CA, for petitioner-appellant.

Joseph P. Furman, Deputy Atty. Gen., Sharon Wooden Richard, Deputy Atty. Gen., Los Angeles, CA, for respondents-appellees.

Appeal from the United States District Court for the Central District of California.

Before REINHARDT, T.G. NELSON, Circuit Judges, and KAUFMAN, Senior District Judge. ^*

Part I of the opinion by Senior District Judge KAUFMAN; Part II by Judge REINHARDT.

All members of the court join in all three parts of the opinion.

KAUFMAN, Senior District Judge, delivered Part I of the opinion of the court.

REINHARDT, Circuit Judge, delivered Part II of the opinion of the court.

I

Sheldon Sanders appeals the district court's denial of his 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus. Sheldon ¹ was convicted in a second trial in the Superior Court of Los Angeles County, California, of second-degree murder ² and of illegal use of a firearm, ³ after his first trial in that court had resulted in a hung jury. Sheldon, in the federal district court below, asserted that he

had received ineffective assistance of counsel in violation of his Sixth Amendment rights. U.S. Const. amend. VI. The district court, adopting the Report and Recommendation of a U.S. Magistrate Judge, denied petitioner's writ. Thereafter, Sheldon appealed to this Court. Because his attorneys during both trials were faced with impermissible conflicts of interest, which adversely affected their representation of Sheldon, we remand the within case to the district court with directions to issue the writ of habeas corpus sought by Sheldon.

FACTS

This case arises from the murder of Norman Gregory on July 11, 1985, in Compton, California. Although the events of that day have been, to some extent, obscured by conflicting accounts and the passage of time, the following rather clear picture has emerged. ⁴

In 1985, Kelvin Sanders, Sheldon's brother, was estranged from his wife, Reynetta Gregory Sanders. As a result of that estrangement, Reynetta resided at the Gregory family residence with her brother, Norman, among others. On the morning of July 11, 1985, Kelvin Sanders was at the Gregory residence, apparently having spent the previous night there. At approximately 10 a.m., Sheldon arrived to pick up Kelvin. Sheldon was driving a burgundy BMW which belonged to his sister, Sheree, but which Xavier, another brother, apparently often drove. Sometime prior to the departure of Sheldon and Kelvin, they became embroiled in an altercation with two of Reynetta's brothers, Norman and David Gregory. Though none of the combatants suffered any injury, a stone allegedly thrown by one of the Gregory brothers struck and cracked the windshield of the BMW.

Shortly after those events occurred, Reynetta received two brief telephone calls from Kelvin warning her to leave the house. Presumably in response to the warnings, she dressed her children and went next door. Reynetta testified that, approximately fifty minutes after Sheldon had departed the Gregory residence, and twenty minutes after she had left that residence to go to a neighbor's home, she heard a loud "bang" outside and ran out of that neighbor's house into the street.

At the same time, Norman, David and Terrell Gregory, along with their friends, William Thomas and Darryl Anderson, all of whom had been inside the Gregory residence, ran to the front door and crowded around the doorway to observe what had happened. The outside, wooden front door was open. As they peered out at the street through a second, inner, screened and barred security door, they observed a man standing in the street with a rifle. The witnesses in the doorway disagree as to whether the man fired two or three shots from the rifle. There is no doubt, however, that one of the gunshots fatally wounded Norman Gregory, entering the back of his neck and exiting his left jaw. He died a few days later.

When first interviewed by the police, one of the four surviving witnesses who had been standing at the door, Terrell Gregory, identified the assailant as "Zuba," a nickname for Xavier Sanders. A second witness, Darryl Anderson, initially informed police that the guilty party was "Kake," a nickname for Sheldon; however, the next day Anderson told the police that "Zuba" was the shooter. Another witness, David Gregory, consistently has identified Sheldon as the perpetrator. A fourth witness, William Thomas, first told the police that the assailant was "Kake," but later stated to the police that he was not sure who had fired the fatal shot. Reynetta Sanders, who seems to have possessed an unobstructed vantage from the property of one of the neighbors of the Gregorys, originally told police that the assailant was Xavier, not Sheldon, although she later testified at both trials that she saw Sheldon with the rifle. All of the other witnesses also testified at the trials that Sheldon was the man who they saw fire the shots.

Sheldon was arrested at his parents' home on July 12, 1985. Xavier, informed that the Prior to the first trial, Xavier's mother informed the attorney that Xavier told her, on the night of the shooting, that he (Xavier) had shot Gregory. During Sheldon's first trial, the attorney subpoenaed Xavier to testify but, according to Xavier, when he arrived at the courthouse, the attorney advised him to "take the [F]ifth" despite Xavier's expressed willingness to testify that he, not Sheldon, had shot Norman Gregory. The trial resulted in an evenly split jury, a mistrial was declared, and a second trial was scheduled.

police were looking for him as well, then hired an attorney, paid an agreed retainer, and confided to him that he, Xavier, not Sheldon, had shot Norman Gregory and that, at the time of the shooting, he was accompanied by Sheldon and Kelvin. The attorney advised Xavier to report to the police but to assert his Fifth Amendment rights and to refuse to divulge any information. Upon Xavier's release from custody and the decision of the police not to press charges against him, the same attorney assumed representation of Sheldon. Apparently, the attorney informed Xavier that the retainer already paid by the latter would be considered as paid on behalf of Sheldon. Sheldon, as well as his mother and his father, assumed responsibility for subsequent fees to be paid to the attorney during the course of his representation of Sheldon.

After the mistrial, Sheldon's parents dismissed the first attorney and retained Philip Jefferson ⁵ to represent Sheldon during the second trial. Sheldon's first attorney provided Jefferson, inter alia, with the police reports which had been received in discovery in preparation for the first trial. Prior to the second trial, Regina Sanders, who is Sheldon and Xavier's mother, came with Xavier to Jefferson's law office. She informed Jefferson of Xavier's confession to her and of his willingness to talk with Jefferson about his shooting of the victim. Subsequently, during the second trial, Xavier came to the courtroom, purportedly ready to testify that he had fired the fatal shot, but, upon being instructed by Jefferson to leave, Xavier departed without testifying.

In connection with the second trial, Jefferson pursued three defenses on behalf of Sheldon. First, he offered alibis to show that Sheldon was not at the scene of the crime. Second, he contended that the shot which had killed Norman Gregory was fired from inside the Gregory house, not from the street where witnesses placed Sheldon and his brother, Xavier. Lastly, relying on conflicting accounts of eyewitnesses who variously had identified Xavier or Sheldon as the shooter, Jefferson claimed that Xavier, not Sheldon, shot Gregory.

The juries, during the first and second trials, never had the opportunity to hear Xavier testify and never learned of Xavier's statement to his mother on the night of the shooting that he was the shooter. At the close of the second trial, the jury convicted Sheldon of second-degree murder and illegal use of a firearm. Thereafter, Sheldon was sentenced to seventeen years to life.

After the second trial, the Sanders family discharged Jefferson and retained a third attorney, Leslie Abramson. Abramson unsuccessfully filed a petition for habeas corpus relief in the Superior Court of Los Angeles County, California. The judge sitting in that court, who subsequently served as the referee in a later evidentiary hearing, denied relief to Sheldon. On appeal, the California Court of Appeal, while ultimately affirming the denial of state habeas corpus relief, ordered the appointment of a referee to take evidence and to make findings concerning competency of counsel. The judge (referee) then appointed a new attorney, Rowan Klein, to represent Sheldon in the ensuing evidentiary proceeding. Jefferson, whose conduct formed the principal focus of the hearing, was unavailable to testify. ⁶ Klein introduced Upon the conclusion of the hearing, the referee found no tangible evidence of incompetence of counsel or prejudice and denied the state habeas corpus petition. The California Court of Appeal, in a lengthy opinion, adopted the referee's findings and affirmed the judgment by a vote of 2 to 1, over a forceful, and in this Court's view, a very convincing dissent. The California Supreme Court denied review.

a tape-recorded conversation between Xavier and Klein, in which Xavier admitted that he (Xavier) had fired the rifle. Xavier, who testified in person, repeated during that hearing most of the information conveyed on that tape but refused to answer questions as to whether he had fired the gun.

On January 17, 1991, Sheldon filed a federal habeas...