Bemore v. Chappell, CASE NO. 08cv0311 LAB (WVG)

• Court: United States District Courts. 9th Circuit. United States District Court (Southern District of California)
• Parties: TERRY BEMORE, Petitioner, v. KEVIN CHAPPELL, Acting Warden of San Quentin State Prison, Respondent.
• Docket Number: CASE NO. 08cv0311 LAB (WVG)
• Decision Date: 19 September 2012

TERRY BEMORE, Petitioner,
v.
KEVIN CHAPPELL, Acting Warden of San Quentin State Prison, Respondent.

CASE NO. 08cv0311 LAB (WVG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DATED: September 19, 2012

DEATH PENALTY CASE
ORDER:
(1) DENYING PETITIONER'S MOTION FOR EVIDENTIARY HEARING ON CLAIMS 1-20, 23, AND 30-33 [Doc. No. 69];
(2) DENYING RESPONDENT'S REQUEST TO DISMISS CLAIM 19 AND 23 ON THE BASIS OF PROCEDURAL DEFAULT;
(3) DENYING HABEAS RELIEF ON CLAIMS 1-20, 23, AND 29-33; AND
(4) DENYING PETITIONER'S MOTION FOR LEAVE TO TAKE DEPOSITIONS [Doc. No. 110]

Presently before the Court is Petitioner's motion for an evidentiary hearing on Claims 1-20, 23 and 30-33 [Doc. No. 69] and Respondent's request to dismiss Claims 19 and 23 on the basis of state procedural bars. Respondent opposes Petitioner's motion for an evidentiary hearing and requests dismissal of all claims. The Court held oral argument on Friday, September 14, 2012, at which Petitioner conceded that an evidentiary hearing was not necessary on Claim 13, 15, 17, 19-20, 23, and

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30-32. For the reasons discussed below, Respondent's request for dismissal of Claims 19 and 23 on procedural default grounds is DENIED, Petitioner's motion for an evidentiary hearing on Claims 1-12, 14, 16, 18, and 33 is DENIED, habeas relief is DENIED as to Claims 1-20, 23, and 29-33, and Petitioner's motion for leave to take depositions is DENIED.

I. PROCEDURAL HISTORY

On June 6, 1989, Petitioner was convicted of the August 26, 1985 murder and robbery of Kenneth Muck and robbery of the Aztec Liquor Store in San Diego. Specifically, Petitioner was convicted of one count of first-degree murder, one count of robbery, and one count of burglary. In addition, the jury found true two special circumstance allegations - murder in the commission of a robbery and murder involving the infliction of torture. On August 7, 1989, the jury returned a sentence of death. On November 2, 1989, the trial court denied Petitioner's motions for a new trial and for modification of the sentence, and sentenced him to death.

On automatic appeal (hereinafter "direct appeal") of his conviction and judgment to the California Supreme Court, Petitioner's conviction and sentence were affirmed in a decision issued on April 20, 2000. People v. Bemore, 22 Cal. 4th 809 (2000). The California Supreme Court subsequently denied Petitioner's request for a rehearing, and on January 8, 2001, the Supreme Court of the United States denied his petition for a writ of certiorari.

On June 19, 2000, Petitioner filed a habeas petition with the California Supreme Court. The petition was denied on October 17, 2007 without an evidentiary hearing.

On January 13, 2009, Petitioner filed his Petition for a Writ of Habeas Corpus and attached exhibits with this Court, the operative pleading in this action.¹ Petitioner subsequently dropped Claim 35, the one unexhausted claim in his Petition, and on November 4, 2009, Respondent filed an Answer.

On March 17, 2010, Petitioner filed a Motion for Summary Judgment and/or an Evidentiary Hearing on Claims 27-28 and 36-38 of the Petition, an Opening Brief ["Pet. Brief"], and a Motion for an Evidentiary Hearing on Claims 1-20, 23, and 30-33 of the Petition ["Mot."]. On June 7, 2010, Respondent filed a Merits Brief Opposing Petitioner's Motions ["Opp."], and on August 4, 2010,

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Petitioner filed a Reply. On March 22, 2011, the Court denied Petitioner's Motion for Summary Judgment and/or an Evidentiary Hearing on Claims 27-28 and 36-38, and denied habeas relief on Claims 21-22, 24-28, 34, and 36-38. (See Doc. No. 88.)

II. TRIAL PROCEEDINGS

The Court incorporates by reference the overview of the evidence presented during the guilt and penalty phases of trial as detailed in the Order on Petitioner's Motion for Summary Judgment issued on March 22, 2011. (See Doc. No. 88.)

III. PETITIONER'S CLAIMS

In order to provide a structure for the Court's discussion of Petitioner's habeas claims, set forth below is a list of the claims contained in the federal Petition along with a parenthetical noting whether the claim was previously raised on direct appeal² , in the state habeas petition, or both. The claims are as follows:

Claim 1 - Fraud of Trial Counsel - Obtaining and Using Defense Funds (previously raised as claim 1 of state habeas petition)

Claim 2 - Conflict of Interest of Trial Counsel - Misappropriation of Funds (previously raised as claim 2 of state habeas petition)

Claim 3 - Conflict of Interest of Trial Counsel - Fraud of Investigator Small (previously raised as claim 3 of state habeas petition)

Claim 4 - Conflict of Interest of Trial Counsel - Gambling Habit of Lead Counsel (previously raised as claim 4 of state habeas petition)

Claim 5 - Conflict of Interest of Trial Counsel - Racism of Lead Counsel (previously raised as claim 5 of state habeas petition)

Claim 6 - Conflict of Interest of Trial Counsel - Cumulative Effect of Conflicts (previously raised as claim 6 of state habeas petition)

Claim 7 - Ineffective Assistance of Trial Counsel - Failure to Investigate and Present Mental Defenses at the Guilt Phase (previously raised as part of claim 7 of state habeas petition)

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Claim 8 - Ineffective Assistance of Trial Counsel - Failure to Challenge Torture Special Circumstance (previously raised as claim 8 of state habeas petition)

Claim 9 - Ineffective Assistance of Trial Counsel - Failure to Investigate and Present Evidence of Petitioner's Mental Incompetence at Trial (previously raised as claim 9 of state habeas petition)

Claim 10 - Ineffective Assistance of Trial Counsel - Alibi Defense (previously raised as claim 10 of state habeas petition)

Claim 11 - Ineffective Assistance of Trial Counsel - Performance in Selecting the Jury (previously raised as claim II on direct appeal and claim 11 of state habeas petition)

Claim 12 - Ineffective Assistance of Trial Counsel - Witness Latonya Wadley (previously raised as claim 12 of state habeas petition)

Claim 13 - Ineffective Assistance of Trial Counsel - Failure to Move for Mistrial on Juror's Out-of-Court Experiment (previously raised as claim 13 of state habeas petition)

Claim 14 - Ineffective Assistance of Trial Counsel - Failure to Investigate and Present Mitigation Evidence at the Penalty Phase (previously raised as part of claim 7 of state habeas petition)

Claim 15 - Ineffective Assistance of Trial Counsel - Failure in Presenting Evidence on Petitioner's Life in Custody (previously raised as claim IV on direct appeal)

Claim 16 - Ineffective Assistance of Trial Counsel - Failure to Investigate Uncharged Carlton Rape (previously raised as claim 14 of state habeas petition)

Claim 17 - Ineffective Assistance of Trial Counsel - Testimony of Sarah Parker (previously raised as claim 15 of state habeas petition)

Claim 18 - Ineffective Assistance of Trial Counsel - Cumulative Effect (previously raised as claim 16 of state habeas petition)

Claim 19 - Brady Violation - Testimony of Investigator Cooksey (previously raised as claim 17 of state habeas petition)

Claim 20 - Brady Violation - Failure to Disclose Favorable Treatment Given to Witnesses (previously raised as claim 18 of state habeas petition)

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Claim 23 - Juror Misconduct - Juror Albarrin's Out-of-Court Experiment (previously raised as claim 20 of state habeas petition)

Claim 29 - State Delay in Appointing Counsel and Interference With Attorney-Client Relationship (previously raised as claim 24 of state habeas petition)

Claim 30 - Ineffective Assistance of Appellate Counsel (previously raised as claim 25 of state habeas petition)

Claim 31 - Conflict of Interest of Appellate Counsel (previously raised as claim 26 of state habeas petition)

Claim 32 - State Supreme Court Erred in Failing to Find Trial Counsel Prejudicially Ineffective During Voir Dire (previously raised as claim 27 of state habeas petition)

Claim 33 - State Supreme Court's Denial of Petitioner's Constitutional Rights (previously raised as claim 28 of state habeas petition)

IV. PROCEDURAL DEFAULT

Of the claims adjudicated in this Order, Respondent contends that Claims 7 ¶ K, 12, 13, 19, 20 and 23 are procedurally barred. The Court has previously concluded that Claims 7 ¶ K, 12, 13 and 20 were denied by the California Supreme Court solely on the merits, and that there are no procedural bars to prevent the Court's review of those claims on the merits....