Cain v. Cullen

• Decision Date: 16 March 2011
• Docket Number: CASE NO. CV 96-2584 ABC
• Court: U.S. District Court — Central District of California
• Parties: TRACY DEARL CAIN, Petitioner, v. VINCENT CULLEN,* Warden of California State Prison at San Quentin, Respondent.

TRACY DEARL CAIN, Petitioner,

v.VINCENT CULLEN, * Warden of California State Prison at San Quentin, Respondent.

CASE NO. CV 96-2584 ABC

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Dated: March 16, 2011

DEATH PENALTY CASE

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR EVIDENTIARY HEARING

Petitioner was convicted in 1988 of the burglary, robbery, and first degree murders of his neighbors, William and Modena Galloway. The jury found true special circumstance allegations of burglary-murder, robbery-murder, multiple-murder, and attempted-rape-murder. Petitioner was acquitted on a charge of rape.

The jury sentenced Petitioner to death. After denying the motion for modification of the penalty verdict, the court entered judgment accordingly. The California Supreme Court affirmed Petitioner's conviction and sentence on May 4, 1995. California v. Cain, 10 Cal. 4th 1 (1995), cert. denied, 516 U.S. 1077 (1996). On July 19, 1995, the California Supreme Court denied his petition for writ of habeas corpus.

* Vincent Cullen is substituted for his predecessors as Warden of California State Prison at San Quentin, pursuant to Federal Rule of Civil Procedure 25(d)(1).

Petitioner filed a federal petition for writ of habeas corpus on June 24, 1997. Petitioner was ordered to return to state court to exhaust certain claims. He filed a First Amended Petition containing only unexhausted claims on January 12, 1998, and the federal habeas proceedings were held in abeyance. The California Supreme Court denied relief on the state exhaustion petition on June 28, 2000.

Petitioner filed a Second Amended Petition on October 3, 2000. The court granted discovery on limited issues on March 5, 2001 and September 24, 2002.

Also on March 5, 2001, Respondent filed a motion to dismiss the Second Amended Petition. The Court denied the motion but required that Claim 10(4) be withdrawn from the Second Amended Petition because it was unexhausted. Petitioner withdrew Claim 10(4) on August 1, 2001.

Following the filing of an answer and traverse, on February 7, 2003, Respondent filed a motion for judgment on the pleadings. The next month, Petitioner filed an initial motion for evidentiary hearing. On June 12, 2003, the Court granted judgment on the pleadings in favor of Respondent on Claims 4, 5, 6, 7, and 14.

On June 19, 2003, Petitioner filed notice with the Court that he had filed a state habeas petition raising claims under Atkins v. Virginia, 536 U.S. 304 (2002). The Court stayed the federal proceedings and held them in abeyance pending the state court's resolution of that petition. The California Supreme Court denied the petition on April 22, 2009.

The Court lifted the stay of the instant proceedings on April 30, 2009. At that time, the Court denied without prejudice the March 2003 motion for evidentiary hearing. The Court explained that "[a]t the time the motion was filed Petitioner believed that this case was not governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") because it was the date that the request for counsel was filed which determined the applicability of the AEDPA. However, since that time it has become clear that this case is governed by theAEDPA because it is the filing of the petition, not the request for appointment of counsel, which determines whether a case was pending before the AEDPA was enacted." (Minute Order, April 30, 2009, at 2 (citations omitted).)

Petitioner filed a Third Amended Petition on June 15, 2009 ("Petition"). He filed the instant Motion for Evidentiary Hearing on October 23, 2009 ("Motion").

I. Scope of Motion

Petitioner's Motion purports to request an evidentiary hearing on a number of broad issues, listed below. His memorandum discusses and proposes evidence to be presented in support of only select subclaims within those categories, however. The claims included in the Motion are as follows: ¹

(A) "ineffective assistance of counsel at the penalty phase and related claims (Tenth Claim for Relief; Eleventh Claim for Relief, Subclaims 4-6, 10, 13 and 14)." The Motion presents and proposes evidence regarding each subclaim of Claim 10 (i.e., Claims 10(1)-10(18)), but gives no discussion of these subclaims of Claim 11.

(B) "conflict of interest and related claims, including ineffective assistance and the deprivation of competent expert assistance (Second Claim for Relief, Subclaim 1; Third Claim for Relief, Subclaim 1; Eleventh Claim for Relief, Subclaim 11; Thirteenth Claim for Relief)." The Motion presents and proposes evidence regarding each claim: Claim 2(1), 3(1), 11(11), and 13.

(C) "ineffective assistance of counsel at the guilt phase (Second Claim for Relief)." The Second Claim for relief has 19 subclaims. The Motion presents and proposes evidence regarding only Claims 2(1), 2(2), 2(7), 2(11), 2(12), 2(13), 2(14), 2(17), and 2(18) of the Petition.

(D) "prosecutorial misconduct (First Claim for Relief; Eighth Claim for Relief, Subclaim 1; Ninth Claim for Relief; Eleventh Claim for Relief, Subclaims2, 4, 7, 8, 17; Fifteenth Claim for Relief, Subclaims 1, 10 and 11; Nineteenth Claim for Relief, Subclaims 1-4)." The Motion presents and proposes evidence regarding only Claims 1(1), 1(2), and 1(3).

(E) "cumulative error (Eighteenth Claim for Relief)." The Motion presents and proposes evidence regarding Claim 18.

(F) "lethal injection (Eighth Claim, Subclaim 4)." The Motion presents and proposes evidence regarding Claim 8(4).

A request for evidentiary hearing must "include a specification of the factual issues and the legal reasoning that require a hearing and a summary of the evidence of each claim the movant proposes to offer at the hearing." L.R. 83-17.7(g) (2003). The Court, therefore, addresses only those claims for which Petitioner has specified the facts and law requiring a hearing and the evidence he would present at such a hearing.

II. Legal Standard for Evidentiary Hearing

"Prior to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the decision to grant an evidentiary hearing was generally left to the sound discretion of district courts. That basic rule has not changed." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citations omitted). "Because a federal court may not independently review the merits of a state court decision without first applying the AEDPA standards, " however, the court "may not grant an evidentiary hearing without first determining whether the state court's decision was an unreasonable determination of the facts.... If, for example, a state court makes evidentiary findings without holding a hearing... such findings clearly result in an unreasonable determination of the facts." Earp v. Ornoski, 431 F.3d 1158, 116667 (9th Cir. 2005) (internal quotation omitted). Likewise, where "an evidentiary hearing is needed in order to resolve the[ ] factual allegations... the state court's decision was based on an unreasonable determination of the facts." Id. at 1173.

An evidentiary hearing is required if the petitioner "establishes a colorableclaim for relief and has never been afforded a state or federal hearing on this claim.... In showing a colorable claim, a petitioner is required to allege specific facts which, if true, would entitle him to relief." Id. at 1167, 1167 n.4 (internal citation omitted); see also Alberni v. McDaniel, 458 F.3d 860, 873 (9th Cir. 2006) (holding petitioner "is entitled to an evidentiary hearing if he (1) alleges facts, which, if proven, would entitle him to relief; and (2) show[s] that he did not receive a full and fair hearing in state court either at trial or in a collateral proceeding").

Under the habeas statute as amended by AEDPA, "[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim" unless certain narrow circumstances apply. 28 U.S.C. § 2254(e)(2); Williams (Michael) v. Taylor, 529 U.S. 420, 429-30 (2000). A finding that the petitioner failed to develop the factual basis of a claim requires a showing of "lack of diligence, or some greater fault, attributable to" the petitioner or his counsel. Williams (Michael), 529 U.S. at 432; accord Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (holding that "petitioner is barred from having an evidentiary hearing under § 2254(e)(2) when petitioner did not exercise diligence in developing facts in the relevant state court proceedings"). Thus, if a petitioner properly presented the factual basis for his claim to the state court but was denied a hearing, the AEDPA does not bar an evidentiary hearing in federal court. See Williams (Michael), 529 U.S. at 440-44. If, as here, "the California Supreme Court summarily denied [the] state habeas petition without ordering formal pleadings, " the petitioner would "never reach[ ] the stage of the proceedings at which an evidentiary hearing should be requested." Horton v. Mayle, 408 F.3d 570, 582 n.6 (9th Cir. 2005); California v. Romero, 8 Cal. 4th 728, 737-40 (1994) (summarizing the California procedures for habeas petitions). Petitioner has not, therefore, shown any lack of diligence. See Horton v. Mayle, 408 F.3d at 582 n.6.

To obtain relief on a claim, the petitioner must establish that the state court'sdenial of the claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see also Harrington v. Richter, 131 S. Ct. 770, 783-84 (2011). A state court decision is "contrary to" federal law "if the state court applies a rule that contradicts the governing law set forth in ^{reme Court} cases" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to" that reached by the...