Jackson v. Warden

• Citation: 211 F.3d 1148
• Decision Date: 08 May 2000
• Docket Number: No. 97-99032,97-99032
• Parties: (9th Cir. 2000) MICHAEL JACKSON, Petitioner-Appellant, v. ARTHUR CALDERON, Warden, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1148

211 F.3d 1148 (9th Cir. 2000)

MICHAEL JACKSON, Petitioner-Appellant, v. ARTHUR CALDERON, Warden, Respondent-Appellee.

No. 97-99032

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 10, 1998

Filed May 8, 2000

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[Copyrighted Material Omitted]

COUNSEL: Allyn O. Kreps, Troy & Gould; Robert S. Draper, O'Melveny & Myers, Los Angeles, California, for the petitioner-appellant.

Donald de Nicola, Deputy Attorney General, Los Angeles, California, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding. D.C. No. CV-91-04249-R

Before: William C. Canby, Jr., Diarmuid F. O'Scannlain and Sidney R. Thomas, Circuit Judges.

Opinion by Judge Canby; Partial Concurrence and Partial Dissent by Judge O'Scannlain

CANBY, Circuit Judge:

In 1983, Michael Jackson, while grossly intoxicated with phencyclidine (PCP), shot and killed West Covina Police Officer Kenneth Wrede. Several witnesses testified to Jackson's bizarre behavior before the event, and to the brief encounter that ended in the shooting. Jackson concedes that he shot Officer Wrede, but he has always maintained that he has no recollection of the encounter whatsoever. The question before us is whether Jackson was provided with effective assistance of counsel in presenting his defense to the capital charge that resulted.

Jackson was convicted of first-degree murder and sentenced to death. The California Supreme Court affirmed the conviction and sentence. See People v. Jackson , 49 Cal. 3d 1170, 783 P.2d 211 (1989) (in bank), cert. denied, 498 U.S. 881 (1990). Jackson subsequently exhausted his state collateral remedies and then filed a petition for habeas corpus in the district court. See 28 U.S.C. S 2254. The district court, after holding an evidentiary hearing on some of the claims, denied the petition. The district court then granted a certificate of probable cause and stayed Jackson's execution pending this appeal. We now affirm the judgment of the district court insofar as it upholds Jackson's conviction for first degree murder, but we reverse that part of the judgment that upholds the sentence of death. We conclude that Jackson received ineffective assistance of counsel, to his prejudice, at the penalty phase of his trial.

FACTUAL BACKGROUND

On the morning of August 31, 1983, Jackson was with friends smoking PCP-laced cigarettes in a garage in West Covina, California. He was a regular PCP user, and on this occasion he had smoked more than one laced cigarette. Suddenly, he jumped up, kicked off his shoes, and ran outside into the street. There several people observed him jumping around, falling down, and diving head first onto the pavement. One witness saw Jackson start to cross the street several times, only to change his mind each time seemingly without cause. The same witness said Jackson was pulling and slapping at his hair.

A few blocks away, a motorist who had seen Jackson stopped to report Jackson's unusual behavior to Officer Wrede. Wrede radioed from his patrol car that he was going to investigate a "possibly dusted" suspect, and requested additional officers. Wrede then drove to Jackson's location and confronted Jackson. He asked Jackson to sit down on the curb, but Jackson did not comply and began to walk away. Wrede then struck Jackson in the back of the legs with his baton. Jackson and Wrede then wrestled each other to the ground. As they got back up, Wrede repeatedly sprayed Jackson in the face with mace, to no apparent effect. Jackson went to an adjacent yard and attempted unsuccessfully to pull up a tree. He removed two long support stakes and threw them at Wrede.

Wrede ran to his patrol car and opened the driver's door, possibly to radio again for back-up. Jackson went to the front passenger-side door, opened it, and reached for a shotgun that was in a rack inside of the car. Jackson and Wrede wrestled for control of the shotgun and Jackson prevailed, ripping the gun and its rack from the mounting and out of the car. Wrede drew his gun and moved to the left rear of the car, while Jackson remained on the passenger side and pointed the shotgun across the top of the car toward the light bar and Wrede. After some difficulty because the rack was still fastened to the shotgun, Jackson managed to pump a shell into the chamber. There was some conflict in the evidence over what happened next, but at some point Jackson lowered his gun onto the roof and Wrede lowered his gun. Jackson then picked the shotgun back up and fired, hitting the light bar and Wrede. One pellet hit Wrede in the eye, killing him. The entire encounter between Jackson and Wrede had lasted less than four minutes.

Jackson then stumbled away from the patrol car, still carrying the shotgun and rack. Police back-up units arrived less than a minute after the shooting. Jackson walked toward one officer, who testified that Jackson said, "Now I'm gonna kill all the fucking pigs." No other witness testified to hearing that statement. One officer yelled for others to shoot; Jackson replied, "I'm gonna shoot you." Another officer released a police dog, which attacked Jackson. Jackson stunned the dog by hitting him with the shotgun, and said, "I'm going to kill you, too, dog." The dog recovered and bit Jackson, causing him to drop the shotgun. Three officers then tackled Jackson, who resisted and reached unsuccessfully for the gun worn by one of them. The officers succeeded in subduing and handcuffing Jackson.

Jackson was taken to a police station, but his blood pressure fell to 90/40 and he was removed to Queen of the Valley Hospital by 1:30 p.m. At the hospital, Jackson was unable to respond to verbal commands. Medical records describe him as incoherent, in shock, and semi-conscious. A blood sample was taken and was later found to contain PCP in the amount of 176 nanograms per millileter. At 3:00 p.m., an officer conducted a booking interview. Some time later, according to a nurse's testimony, Jackson without any questioning or prompting asked, "Why am I under arrest? Are you charging me with killing a cop?"

Shortly after 4:00 p.m., Jackson was transferred to the jail ward of the Los Angeles County Medical Center, where two officers read him his Miranda rights. One of the officers then interrogated Jackson, and testified that Jackson asked what he was arrested for. When told "murder," Jackson responded in a questioning tone of voice, "I killed a policeman?" At the end of the interrogation, as the officer was leaving, Jackson said, "I didn't kill that policeman."

The next day, the same officer and his partner returned to interrogate Jackson further. The officer testified that Jackson waived his Miranda rights, and that Jackson remembered the officers from the previous day, stating that they were "the cops who say I killed that officer with a shotgun. " The officer testified that neither he nor his partner had told Jackson that a shotgun had been used.

Jackson remained in the jail ward of the Medical Center for some three weeks. His trial began some six months after the incident.

THRESHOLD PROCEDURAL ISSUES

The State raises two procedural points that we address before considering the claims of ineffective assistance of counsel. First, the State contends that it is entitled to the expedited procedures and greater deference to state court rulings provided by Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,S 107, 110 Stat. 1214, 1221-26 (Apr. 24, 1996) (codified at 28 U.S.C. SS 2261-2266). As the State recognizes, most of the provisions of the Act do not apply to this case because Jackson's petition was filed in district court prior to the Act's effective date. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Congress provided, however, that Chapter 154 was to apply to all cases "pending on or after the date of enactment" of the Act. Pub. L. No. 104-32, S 107(c), 110 Stat. 1226. The State contends that it meets the various criteria that Chapter 154 establishes as conditions of its applicability to a "unitary review" state. See 28 U.S.C. S 2265. We need not examine this claim further, because we recently rejected an identical argument by the State in Ashmus v. Woodford, 202 F.3d 1160 (2000) (amended opinion). Ashmus controls here.

The State next contends that Jackson's ineffectiveassistance claims are all procedurally defaulted because the California Supreme Court denied those collateral claims "both on the merits and as untimely." The untimeliness ruling, argues the State, is an independent state procedural ground that precludes federal habeas corpus relief. See Coleman v. Thompson, 501 U.S. 722, 729-30, 734-35 (1991). For the procedural default rule to apply, however, "a state rule must be clear, consistently applied, and well-established at the time of the petitioner's purported default." Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994) (citing Ford v. Georgia, 498 U.S. 411, 424-25 (1991)). Prior to the California Supreme Court ruling in In re Clark, 5 Cal. 4th 750, 855 P.2d 729 (1993), California's untimeliness rule did not meet that standard, and consequently did not bar federal habeas review. See Morales v. Calderon, 85 F.3d 1387, 1388, 1393 (9th Cir. 1996). In Morales, we found no need to determine whether Clark clarified California's timeliness requirement sufficiently to raise a bar to federal review, because Clark was decided after the California Supreme Court denied Clark's petition. Id. Here, we reach the same conclusion, because Clark was decided only thirty-two days, and became final only two days, before Jackson's state habeas petition was filed in the California Supreme Court. Any undue delay on the part of Jackson necessarily occurred before Clark. See Calderon v. United States Dist. Ct. (Bean), 96 F.3d 1126, 1128, 1129-31 (1996) (applying Morales to...