Adcock v. Haws

• Decision Date: 12 March 2012
• Docket Number: No. 2:10-cv-705-GEB-JFM (HC),2:10-cv-705-GEB-JFM (HC)
• Parties: MARK DESMOND ADCOCK, Petitioner, v. HAWS, Respondent.
• Court: U.S. District Court — Eastern District of California

MARK DESMOND ADCOCK, Petitioner,

v.HAWS, Respondent.

No. 2:10-cv-705-GEB-JFM (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: March 12, 2012

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition filed March 24, 2010, petitioner brings claims for Brady¹ error, prosecutorial misconduct, insufficiency of evidence and ineffective assistance of counsel.

PROCEDURAL BACKGROUND

On December 6, 2007, petitioner was convicted by a jury of first-degree murder, in violation of Cal. Penal Code § 187(a)² , while engaged in a robbery and a burglary, both specialcircumstances under §190.2(a)(17).³ Clerk's Transcript ("CT") 2 at 343. Petitioner was sentenced to life imprisonment without the possibility of parole. Id. at 404-05.

On August 12, 2008, petitioner appealed to the California Court of Appeal, Third Appellate District. LD 4. On March 24, 2009, the state appellate court denied petitioner's direct appeal and affirmed the judgment. LD 8.

On April 29, 2009, petitioner appealed to the California Supreme Court. LD 9. On June 25, 2009, the state supreme court summarily denied review. LD 10.

On September 29, 2009, petitioner filed a petition for writ of habeas corpus with the California Supreme Court. LD 11. On March 10, 2010, the state supreme court summarily denied the petition for review. LD 12.

Petitioner initiated this action on March 24, 2010. Respondent filed an answer on June 24, 2010. Petitioner filed a traverse on July 8, 2010.

FACTUAL BACKGROUND⁴

The murder

Daryl Sussdorf owned and operated Nugget Auto Sales, a used car dealership in Sacramento. He ran the business by himself, without any employees. He provided the financing for his customers; they would purchase their cars and make payments at the dealership later. Sussdorf recorded the payments on account cards and in a receipt book. When an account was paid off, Sussdorf would deliver the title document to the customer.

Most of Sussdorf's customers paid with cash, so he often had a lot of cash at the dealership. He commonly carried several hundred dollars in his wallet or pocket. He did not make a bank deposit every day; instead, he would do so after accumulating a lot of money. He kept a moneybag in the office for making deposits.

The door to the dealership's office locked automatically, so Sussdorf knew who was coming and going. The office had two floors. There were security cameras outside the dealership but they did not work. On two occasions, codefendant Russell Jones had purchased cars from Sussdorf.

In January 2005 (all of the events described herein occurred in 2005 unless otherwise indicated), Sussdorf's wife was suffering from terminal cancer. Their daughter, Kathy Jenson, was caring for her. Sussdorf and Jenson spoke by telephone approximately five to 10 times per day.

On January 21, at about 4:15 p.m., Lon'ette Cannon went to the dealership and paid Sussdorf $400. He was alone. Cannon chatted with him for a few minutes and then left at 4:30 p.m.

Jenson last spoke to Sussdorf at about 5:00 p.m. that evening. After that, she telephoned him several times but he did not answer or return her calls. He would usually arrive home at about 6:45 p.m. or call to say that he was running late.

By 7:00 p.m., Jenson was very concerned because neither she nor her mother had heard from Sussdorf. She sensed something was wrong, so she picked up her fiancé, Chris Valenzuela, and went to the dealership. While enroute, Valenzuela telephoned 911 and told the Sacramento County Sheriff's Department about the situation.

Jenson and Valenzuela arrived at the dealership at about 8:15 p.m., and her brother, Dale Sussdorf, arrived soon afterward. Valenzuela started looking around. The office door was locked and the blinds were closed, but Valenzuela could see inside by looking through the gaps between each blind. He saw a large amount of blood and papers scattered about.

Sacramento County Sheriff's Deputy Quis Formoli arrived a few minutes after Jenson and Valenzuela. Dale Sussdorf kicked open the door and Formoli went inside.

There was blood in many places on the first floor of the building, including on the floor, on the blinds, and under the desk chair. Skull fragments and soft tissue were on a wall, and body tissue was on the floor. In addition, there was blood on the staircase, blood dripping down an upstairs wall, and blood on an upstairs carpet.

Sussdorf was sitting on a chair on the second floor. His jeans were down below his knees. His head was bleeding profusely and he was gasping for air. He did not respond to Deputy Formoli.

Deputy Formoli went back downstairs and told Valenzuela about Sussdorf's condition. Valenzuela, who was a firefighter and emergency medical technician, went upstairs with Formoli. They administered first aid until paramedics arrived.

The paramedics removed Sussdorf's clothing in order to treat him. A detective later examined Sussdorf's jeans and observed that the right rear pocket had been torn from the seams that attached it to the pants. There was no money in any of the pockets.

Behind the desk on the first floor, sheriff's deputies found an empty tan wallet. It looked very similar or identical to Sussdorf's wallet. A bank bag was present in the office.

A receipt book was on the desk on the first floor. It contained a receipt dated January 21 for "400" from Lon'ette Cannon. Also on the first floor, deputies found an account card with codefendant Jones's name written in Sussdorf's handwriting. There was blood on the bottom of the card. The card was found with other account cards and was not the only card with blood on it. No money was found in the office.

Sussdorf had suffered 11 blows to his head. Ten days later, he died of his injuries. The injuries were consistent with blows from a hammer.

[Petitioner]'s admissions to J.B.

J.B. met [petitioner] in 1992 or 1993. They lost contact but in 2004 they resumed their social relationship and used heroin together. J.B. later stopped using heroin and underwent Methadone and Cyboxin treatment.

One day during a telephone conversation, [petitioner] told J.B. that [petitioner] was in trouble. [Petitioner] began to say that he had been with someone who had "beat[en a] man up side his head . . . with a hammer." J.B. told [petitioner] to stop talking because the police might be listening, and to speak with him in person instead.

J.B. then met [petitioner] at the Methadone Clinic in Sacramento, where they both were patients. [Petitioner] told J.B. the following: he and another "guy" went to "hit a lick," which means to rob someone, at an auto dealership. The victim was an old man. They "stripped" (robbed) the victim and, while they were doing so, [petitioner]'s cohort "went crazy" and started beating the victim with a hammer. This "spooked" [petitioner], who went outside and acted as a lookout.

[Petitioner] told J.B. that he and his companion took $800 from the victim. Afterward, they used the money to purchase crack cocaine and heroin and got high. [Petitioner] did not tell J.B. that the victim had died; J.B. learned that from the news.

J.B. informed investigator Andre Lemay of the California Department of Justice that he knew about the crime. Lemay put J.B. in contact with the Sacramento Sheriff's Department. J.B. then told Detectives Cabral and Kolb what [petitioner] had told him.

J.B. later learned that a foundation was offering a $5,000 reward in connection with this crime. He told Lemay that he hoped to qualify for the reward. He could get the reward if there was a conviction.

In 1998, J.B. had been convicted of felony burglary. Then in 2004, he had been convicted twice of that offense. He served a prison sentence for the 1998 conviction. After that conviction, he became a police informant. He had provided information to Andrew Lemay on occasion. He had also provided information to the Oakland Police Department. For his convictions in 2004, he received consideration in sentencing because he was providing information to law enforcement.

J.B. informed the Sacramento County District Attorney's Office that [petitioner]'s friends and family had called him and threatened his life. The District Attorney's Office relocated him for his safety. The office spent about $22,300 on J.B., including moving expenses, hotel stays, periodic rent payments, and return trips to safety. The office does not pay his daily living expenses. That was the only money that J.B. received for providing information about this case.

[Petitioner]'s arrest and statements to law enforcement

On February 23, after speaking with J.B. and obtaining an arrest warrant, Detectives Cabral and Kolb, together with other officers, arrested [petitioner] in San Francisco. During the ride back to Sacramento, [petitioner] waived his Miranda (Miranda v. Arizona (1966) 384 U.S. 436 ) rights and spoke with the detectives. The conversation was recorded but road noise made the recording difficult to hear.

[Petitioner] told the detectives that he and codefendant Jones walked from Jones's home to the dealership to do a "lick," which means a robbery. [Petitioner] waited at the corner while Jones went inside. When Jones came back outside, they walked to a bus stop.

The detectives interviewed [petitioner] on videotape when they returned to Sacramento. During the interview, [petitioner] said the following: J.B. was a family friend. On the day of the crime, Jones was wearing a puffy black jacket and red gloves. Jones was in Sussdorf's office for a total of 10 to 15 minutes. Jones told [petitioner] that he had hit Sussdorf "several times" because he did not want Sussdorf to come after him. During the bus ride afterward, Jones showed [petitioner] Sussdorf's wallet, which contained checks from Nugget Auto Sales. Jones took $860 from Sussdorf's pocket, and he and [petitioner] spent it on drugs and a motel room. The duo stayed in the motel from

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