Bolin v. Chappell

Decision Date09 June 2016
Docket NumberCase No. 1:99-cv-05279-LJO-SAB
PartiesPAUL C. BOLIN, Petitioner, v. KEVIN CHAPPELL, Warden of San Quentin State Prison, Respondent.
CourtU.S. District Court — Eastern District of California




Petitioner is a state prisoner, sentenced to death, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by appointed counsel Robert Bacon, Esq. and Brian Abbington, Esq. of the Office of the Federal Defender.

Respondent Kevin Chappell1 is named as Warden of San Quentin State Prison. He isrepresented in this action by Rachelle Newcomb, Esq., and Ryan McCarroll, Esq. of the Office of the California Attorney General.

John Lee Holt, a state prisoner, sentenced to death, is a limited purpose intervener at the evidentiary hearing. He is represented by Jennifer Mann, Esq., of the Office of the Federal Defender.

Before the Court for a decision are (1) claim C2, taken under submission following May 14, 2013 limited evidentiary hearing (ECF No. 339), (2) matters reserved for ruling raised in Petitioner's motion for evidentiary hearing and expansion of the record (ECF No. 214), and (3) the amended petition (ECF No. 113), record based claims A, B, and D through FF.2


Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to judgment of the Superior Court of California, County of Kern imposing the death sentence, following his conviction by jury trial of two counts of first degree murder for which the multiple murder special-circumstance allegation as to the murders of Vance Huffstuttler and Steve Mincy was found true. The jury also found Petitioner guilty of one count of attempted first degree murder of Mr. Jim Wilson, and one count of marijuana cultivation. (CT at 399-400.)3

On September 19, 1989, Petitioner was charged with the following offenses: the murder of Steve Mincy, pursuant to California Penal Code § 187 (Count I), the murder of Vance Huffstuttler, pursuant to California Penal Code § 187 (Count II), the attempted murder of James Wilson, pursuant to California Penal Code § 664/187 (Count III), and the cultivation of marijuana, in violation of Health and Safety Code § 11358 (Count IV). (CT at 125-29.) Counts I-III included alleged use of a firearm. Counts I and II included alleged multiple murder, a special circumstance pursuant to California Penal Code § 190.2(a)(3). All counts alleged that Petitioner had suffered a prior conviction for a serious felony.

At Petitioner's arraignment on January 16, 1990, defense counsel Charles Soria and George Peterson were appointed to represent him. (CT at 4.)

On March 16, 1990, Petitioner pled not guilty to the charges. (CT at 130.) Trial was set to begin on October 22, 1990. (CT at 131.)

Several months later, Mr. Peterson suffered health issues and became unavailable to work on the case. (CT at 133-134.)

Defense counsel Soria moved to withdraw shortly thereafter (CT at 137-39), citing Mr. Peterson's departure and Soria's desire for new and different employment. (7/18/90 RT at 3-4.) Mr. Soria agreed to stay on the case with the appointment of William Cater as second counsel on July 30, 1990. (CT at 203; 7/30/90 RT at 9-10.)

Petitioner, on October 12, 1990, moved to change venue because of the airing of two segments of the television program America's Most Wanted re-enacting Petitioner's alleged involvement in the crime and profiling his subsequent arrest, as well as local broadcast and print media reporting of the case.4 (CT at 238-46.) The Court heard argument on November 1, 1990 and reserved the motion until the conclusion of voir dire. (11/1/90 RT at 2-50.) There was no subsequent ruling on the change of venue motion. (RT at 1640:28-45:13.)

The jury was sworn on December 3, 1990. (CT at 372.)

On December 12, 1990, the jury found Petitioner guilty on all counts and enhancements and found the special circumstance to be true. (CT at 400-09.)

On December 13, 1990, prior to a bifurcated trial on Petitioner's prior conviction for attempted voluntary manslaughter, the Court granted the prosecutor's motion to strike the prior-prison-term allegation in count IV. (CT at 519-21, 524.) After the bifurcated trial, the jury found true the allegation of a prior conviction. (Id.)

On December 14, 1990, following the guilt phase verdict, the Court granted Petitioner's request for substitute defense counsel pursuant to People v. Marsden, 2 Cal. 3d 118 (1970), finding a complete breakdown in the relationship between Mr. Soria and Petitioner (RT at 2297-98), and appointed co-counsel Cater to represent Petitioner at the penalty phase. (RT at 2297-2301.)

The penalty phase began in January 22, 1991. (CT at 584-89.) The jury returned a verdict of death on January 24, 1991. (CT at 626.)

On February 25, 1991, defense counsel Cater's motion for appointment of independent counsel to prepare a motion for new trial was denied. (CT at 668; Supp. RT 2/25/91 at 1-8, 15-17; RT 2/25/91 at 9-14.) Mr. Cater did not then move for a new trial. (Supp. RT 2/25/91 at 18-27.) Later that day, the trial court heard and denied Petitioner's motion to modify the verdict pursuant to Pen. Code § 190.4 and sentenced Petitioner to death on the capital charges. (RT 2/25/91 at 18-27.) The trial court also sentenced Petitioner to the upper term of nine years for attempted premeditated murder (Count III), three years with a stayed one-year enhancement for marijuana cultivation (Count IV), two years for the firearm enhancement pursuant to Pen. Code § 12022.5 and five years for the serious felony enhancement pursuant to Pen. Code § 667(a). (CT at 668-70; RT 2/25/91 at 24-27.)

On June 18, 1998, the California Supreme Court affirmed the judgment and sentence on direct appeal, as modified on August 12, 1998 upon denial of rehearing. People v. Bolin, 18 Cal. 4th 297 (1998), as modified on denial of reh'g (Aug. 12, 1998).

Petition for writ of certiorari was denied by the United States Supreme Court on March 8, 1999. Bolin v. California, 526 U.S. 1006 (1999).

On August 8, 2000, Petitioner filed his federal petition for writ of habeas corpus. On that same day, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court.

The state petition was summarily denied on January 19, 2005, each claim was denied on the merits, claims E1, E2, I3 (with respect to defense-requested penalty phase instruction No. 9) and L were denied on procedural grounds as raised and rejected on appeal, see In re Harris, 5 Cal. 4th 813, 824-29 (1993), and (except to the extent of claimed ineffective assistance of appellate counsel) claims A, B1 (to the extent of alleged trial court error), C, E3, E4, F, H, I1, I2, I3 (except as to defense requested penalty phase instruction No. 9), and J were also denied on procedural grounds because these claims could have been but were not raised on appeal, see In re Dixon, 41 Cal. 2d 756, 759 (1953). In re Bolin, S090684. On that same day, Petitioner filed an amended federal petition alleging violations of the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution, (ECF No. 113),which is the operative pleading.5

Respondent filed an answer to the amended petition on June 17, 2005, admitting certain jurisdictional and procedural allegations, asserting procedural defenses, and denying all claims A through FF. (ECF No. 120.)

On September 30, 2005, the Court found all claims in the amended petition to be fully exhausted. (ECF No. 142 at 4:2-4.)

On September 7, 2006, the Court granted Petitioner limited pre-briefing discovery as to prosecution files including background materials regarding potential jurors; witness Eloy Ramirez; victim/witness Jim Wilson; and notes of prosecution expert, criminologist Greg Laskowski. (ECF No. 174.)

On March 1, 2007, Petitioner filed a memorandum of points and authorities in support of the petition. (ECF No. 178.)

On December 17, 2007, Respondent filed a memorandum of points and authorities in support of his answer to the amended petition. (ECF No. 194.)

On April 15, 2008, Petitioner filed a reply to Respondent's memorandum. (ECF No. 205.)

On December 22, 2008, Petitioner requested an evidentiary hearing with respect to claims A, B2, C, D, F, G, I, J, K, W, Y, BB, CC, DD, and EE. (ECF No. 214.) Therein Petitioner also sought expansion of the record to include exhibits 52 through 94 not previously submitted, which supplement the exhibits that were before the state court.

On March 19, 2009, Respondent filed his opposition to the request for evidentiary development and hearing. (ECF No. 232.)

On August 7, 2009, Petitioner filed a reply to Respondent's opposition, (ECF No. 235); therein withdrawing claim CC and the request for evidentiary hearing on claim CC, alleging that lethal injection is cruel and unusual punishment. (ECF No. 235 at 39:15-16; ECF No. 236.)

On April 27, 2012, the Court granted an evidentiary hearing as to claim C2, ineffective assistance of defense counsel regarding "his trial attorneys' failure to renew their request for a change of venue on the basis of presumed prejudice occasioned by pretrial publicity." (ECF No. 261 at 54:12-15; ECF No. 276, at 53:4-7.) The Court denied on the merits the request for evidentiary hearing for "[t]he trial error component of [c]laim C as well as the argument that juror impartiality (sic) followed from actual prejudice . . . ." (Id.) The Court reserved ruling on the...

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