Thomas v. Hubbard
| Citation | 273 F.3d 1164 |
| Decision Date | 22 January 2002 |
| Docket Number | No. 00-17050,PETITIONER-APPELLANT,RESPONDENT-APPELLEE,00-17050 |
| Parties | (9th Cir. 2001) LARRY WAYNE THOMAS,, v. SUSAN HUBBARD, WARDEN, |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Gilbert Gaynor, Esq., Santa Barbara, California, for the petitioner-appellant.
Janis McLean, Esq., Deputy Attorney General, Sacramento, California, for the respondent-appellee.
Appeal from the United States District Court for the Eastern District of California David F. Levi, District Judge, Presiding D.C. No. CV-97-00702-DFL
Before: Reinhardt, Hawkins, and Rawlinson, Circuit Judges.
Larry Thomas appeals the district court's denial of his petition for a writ of habeas corpus asserting that his conviction for first degree murder and personal use of a deadly weapon should be reversed because of a number of prejudicial errors. Specifically, he contends that the jury was prejudiced by several confrontation and due process clause violations at trial including: (1) the improper introduction of triple hearsay statements; (2) prosecutorial misconduct in eliciting evidence about the prior use of firearms in violation of an in limine order; and (3) the improper truncation of the cross-examination of the lead investigating officer regarding the attempts of the purported eyewitness (who, according to the defense's theory, was the actual killer) to evade the police. In light of the fact that the prosecution's case was based almost entirely on the eyewitness testimony of a single accusing witness who himself had the opportunity and a possible motive to commit the offense, we hold that collectively the errors require the issuance of the writ.
On December 22, 1993, Michael Luke was found stabbed to death in the parking lot of the Cambridge Garden Apartments in Sacramento, California. The police never located the murder weapon and had no physical evidence linking Larry Thomas to the crime. Austin Schwab, the only "eyewitness" to the events and a man who owed money to the deceased, accused Thomas of committing the crime. It was on the basis of this accusation alone that Thomas was arrested and charged with murder.
Larry Thomas consistently maintained his innocence throughout the trial and asserted that Austin Schwab, his accuser, had murdered Luke. He described the events as follows. Thomas and Luke both met with Schwab at Schwab's mother's apartment in the Cambridge Garden Apartment complex on the day of Luke's murder. Thomas went to the apartment looking for Schwab because Schwab owed him money from a drug transaction that had occurred earlier in the week. Thomas had given Schwab, a regular supplier, $200 to buy some methamphetamine. Schwab had then disappeared with Thomas's money rather than returning with his drugs. For the next three days, Thomas made periodic visits to Schwab's apartment where he repeatedly found Michael Luke, who was also looking for Schwab because Schwab owed him money.1 On December 22, 1993, Thomas and Luke each finally located Schwab at the Cambridge Garden Apartments where Schwab's mother lived. After being assured by Schwab that he would meet up with a man that afternoon and would then be able to take care of his debts to both Thomas and Luke, Thomas left the apartment and did not return to the apartment complex that day. Thomas denies that he had anything to do with Luke's death and maintained throughout his trial that Austin Schwab was the murderer.
Although Schwab admitted that he had previously been arrested for possession of methamphetamine, he denied ever being a drug user or drug seller and denied that the meeting at his mother's apartment on the day of the murder had anything to do with drugs. Rather, according to Schwab, Thomas and Luke came to his mother's apartment that day because they wanted him to sell a video camera for them. Schwab agreed to try to do so. During the discussion, Thomas twice pulled Schwab aside to express concerns that Luke would cheat him out of his share of the video camera sale profits. After reassuring Thomas, Schwab went to take a shower and Thomas and Luke left. Schwab's mother told him that Luke and Thomas had gotten into a verbal argument before leaving.
Schwab stated that after making some unsuccessful attempts at selling the camera, he returned to the Cambridge Garden Apartment complex where Luke stopped him in the parking lot and requested a ride. As they were pulling out of the lot, Thomas flagged them down and asked Luke to step out of the car to talk. Luke did so. Schwab then saw Thomas stab Luke in the chest using an object in Thomas's right hand. The autopsy showed that Luke was stabbed in the upper left chest, through the heart, with a wound trajectory consistent with a right-handed thrust. Thomas is left-handed while Schwab is right-handed.
According to Schwab, Thomas ran off after stabbing Luke and Luke then got back into the car and began to go into shock. Schwab then drove to his mother's apartment, parked, and went upstairs to call 911. Although he knew Thomas, when the 911 operator asked him who stabbed Luke, Schwab responded by saying "I don't know who the fuck stabbed him." Later in the conversation, Schwab stated that a Cuban looking guy named "Larry" had done it.
While Schwab was upstairs, Renee Ali, a neighbor with first aid training, administered first aid to Luke in the car. She laid him down and applied pressure to the wound with a towel. When Schwab returned, he sat Luke up and kept pulling Ali's hands away from the wound area. He moved her hands toward Luke's stomach claiming that he was doing what the paramedics had instructed him to do. According to the 911 tape, however, the paramedics instructed Schwab to apply "direct pressure" to the wound. Although Luke was still alive when Schwab returned after calling 911, Schwab later told the police that Luke was dead when he came back downstairs.
When the police arrived, Schwab told them that Thomas was the murderer. The police then asked Schwab if he knew of any reason that Thomas might have for killing Luke, but Schwab failed to mention the proposed video camera sale or the conversation that he allegedly had with Thomas earlier that day during which Thomas purportedly twice expressed concern that Luke would cheat him out of his money. The police, not considering Schwab a suspect, did nothing more than conduct a visual search of his car and did not look in the trunk or search his mother's apartment. The police did search Thomas's apartment but did not find the knife. When asked by the police for his address, Schwab said that he lived with his mother even though he actually had a separate apartment nearby.
Thomas was arrested the day after the stabbing. He was on parole at the time and, because of his drug use, was in violation of his parole terms. He later said that he had been hiding from the police because he wanted to be out of jail for the Christmas holiday and that, for that reason, he gave the police a false name when he was arrested. Although Thomas's jacket at the time of his arrest was an exact match for the jacket that Schwab claimed Thomas was wearing at the time of the stabbing, no blood was found on it or on Thomas's pants or shoes. Thomas did admit that he had two knives the day before Luke's death, but he denied having a knife in his possession on the day Luke was killed. Thomas stated that Schwab had tried to sell him a knife the day of the killing.
Deputy Clark Fancher, the deputy sheriff in charge of the investigation, testified that he interviewed Schwab two months after the stabbing. The trial judge refused to allow Fancher to be questioned about any difficulty he had in locating Schwab. During the interview, Schwab did not tell Fancher that on the day of the murder Thomas and Luke had asked him to sell a video camera. Nor did he tell Fancher that Thomas had allegedly expressed concerns that Luke would cheat him out of his share of the proceeds or that Schwab's mother had told him that Thomas and Luke had quarreled while in her apartment.
We review a district court's decision to dismiss a petition for writ of habeas corpus de novo. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). In order to obtain habeas corpus relief, a petitioner must show that the state court erred and that the error was prejudicial because it had a"substantial and injurious effect" on the outcome. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); Bains v. Cambra, 204 F.3d 964, 977-78 (9th Cir. 2000). Because Thomas's petition was filed after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Thomas must show that the state court's rulings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or were "based on an unreasonable determination of the facts in light of the evidence presented" in the state courts. 28 U.S.C. §§ 2254(d).
Where, as here, the state court fails to consider, or issues a "postcard denial" of, the petitioner's federal claims, we must conduct "an independent review of the record." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). Also, as we recently stated in Fisher v. Roe, 263 F.3d 906, 914 (9th Cir. 2001), "while we are not required to defer to a state court's decision when that court gives us nothing to defer to, we must still focus primarily on Supreme Court cases in deciding whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law."
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