Carter v. Chappell, CASE NO. 06cv1343 BEN (KSC)

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtRoger T. Benitez
Decision Date18 March 2013
PartiesDEAN PHILLIP CARTER, Petitioner, v. KEVIN CHAPPELL, Acting Warden of the San Quentin State Prison, Respondent.
Docket NumberCASE NO. 06cv1343 BEN (KSC)

KEVIN CHAPPELL, Acting Warden of the San Quentin State Prison, Respondent.

CASE NO. 06cv1343 BEN (KSC)


DATED: March 18, 2013



5, 7, 13, 16.C AND 16.E OF THE



On January 3, 2012, Petitioner filed a 28 U.S.C. § 2254(d) Brief, contending that he is entitled to habeas relief on each claim contained in the Second Amended Petition. (Doc. No. 158.) On February 23, 2012, Respondent filed a Response to Petitioner's Section 2254 Brief, requesting dismissal of all claims contained in the Second Amended Petition with prejudice. (Doc. No. 162.) On March 9, 2012, Petitioner filed a Reply. (Doc. No. 163.) The Court has also considered the arguments set forth in the Second Amended Petition, Answer, Traverse, the briefings filed in support of, and in opposition

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to, Petitioner's Motion for an Evidentiary Hearing, as well as the supplemental briefs filed addressing the Supreme Court's decision in Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (2011).

For the following reasons, and based on the arguments presented in the pleadings and at oral argument, the Court DENIES Petitioner's request for evidentiary development on Claims 1-5, 7, 13 16.C and 16.E in the Second Amended Petition, DENIES Respondent's request to dismiss certain claims on the basis of state procedural default, and DENIES habeas relief on Claims 1-16.


By an amended information filed on September 26, 1990, Petitioner Dean Phillip Carter was charged in the murder and robbery of Janette Cullins and the burglary of her home on April 13, 1984, and the forcible rape, forcible copulation, and robbery of Barbara S.1 on March 25, 1984.

On May 22, 1991, Petitioner was convicted of one count of first-degree murder in violation of California Penal Code § 187(a), two counts of robbery in violation of Cal. Penal Code § 211, two counts of burglary under Cal. Penal Code § 459, one count of forcible rape under § 261(2), and one count of forcible oral copulation under Cal. Penal Code § 288(c). The jury further found that in the crimes against Ms. Cullins, Petitioner had personally inflicted great bodily injury in violation of Cal. Penal Code § 12022.7 and that in the crimes against Barbara S., Petitioner had used a deadly weapon in violation of Cal. Penal Code §§ 12022(b) and 12022.3(d).

Petitioner was also found guilty of four special circumstances within the meaning of Cal. Penal Code § 190.2: (1) murder committed while lying in wait, (2) murder committed in the course of a robbery, (3) murder committed in the course of a burglary,

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and (4) Petitioner had previously been convicted of the murders of Susan Knoll, Jillette Mills, and Bonnie Guthrie in Los Angeles County Superior Court.2

On June 18, 1991, the jury returned a sentence of death for the murder of Janette Cullins. On September 9, 1991, the trial court sentenced Petitioner to death, with an additional consecutive sentence of 21 years and 8 months for the crimes committed against Barbara S.

On automatic appeal of this conviction and judgment to the California Supreme Court, Petitioner filed an opening brief on July 2, 1999, raising over twenty-three (23) issues, including numerous claims of trial court errors, voir dire errors, prosecutorial misconduct, jury instruction errors, insufficient evidence, infirmities in the death penalty statute, and cumulative error. Petitioner also filed a reply brief on January 3, 2001, and oral argument was held on May 24, 2005. The California Supreme Court affirmed the conviction and sentence on August 15, 2005. People v. Carter, 36 Cal.4th 1215 (2005). On October 26, 2005, the California Supreme Court denied Petitioner's request for a rehearing, and on April 24, 2006, the Supreme Court of the United States denied his petition for a writ of certiorari.

On April 16, 2001, Petitioner filed a habeas petition with the California Supreme Court, raising over twelve (12) grounds for relief, including claims of the use of improper evidence in aggravation, a denial of his right to competent psychiatric assistance, prosecutorial misconduct, a warrantless search of his person and property, trial court errors, state failures to disclose exculpatory evidence, and ineffective assistance of counsel during the guilt and penalty phases. Petitioner also filed a reply on August 9, 2002. Petitioner was not granted an evidentiary hearing on these claims and his petition was denied on June 28, 2006, and an amended order of denial was issued on September 13, 2006.

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On June 29, 2006, Petitioner filed a request with this Court for appointment of counsel and to stay the execution of his death sentence. On December 6, 2006, Petitioner filed a Protective Petition, and on June 20, 2007, Petitioner filed a mixed Petition for Writ of Habeas Corpus with this Court, asserting 17 claims for relief, with eight claims comprised of numerous sub-claims. On July 6, 2007, Petitioner and Respondent filed a Joint Stipulation and Motion to Stay Federal Proceedings pending the resolution of the state petition, and on July 13, 2007, the Court granted the Motion.

On June 22, 2007, Petitioner filed a second state habeas petition, containing the unexhausted claims, and filed a Reply on April 23, 2009. Petitioner also filed a third state habeas petition on February 16, 2010, based on newly discovered evidence, and filed a Reply on May 14, 2010. The second and third state habeas petitions were both denied by the California Supreme Court without an evidentiary hearing on June 17, 2010.

On July 12, 2010, Petitioner filed a Second Amended Petition ["SAP"] in this Court, the operative pleading in this action.3 On October 18, 2010, Respondent filed an Answer, and on December 8, 2010, Petitioner filed a Traverse. On December 22, 2010, Petitioner filed a Motion for Evidentiary Hearing ["Mot."] on Claims 1-5, 7, 13, and parts of Claim 16 of the Second Amended Petition. On January 11, 2011, Respondent filed an Opposition to Petitioner's Motion ["Opp."], and on January 27, Petitioner filed a Reply. On August 12, 2011, the Court denied Petitioner's Motion for an Evidentiary Hearing without prejudice, holding that "pursuant to [the Supreme Court's decision in Cullen v.] Pinholster, [563 U.S. ___, 131 S.Ct. 1388 (2011)], it does not serve the interests of judicial economy to hold an evidentiary hearing, or decide whether an evidentiary hearing is warranted, prior to conducting a review under section 2254(d)." (Doc. No. 150 at 3.)

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On November 10, 2011, Petitioner filed a Supplemental Brief addressing Pinholster. On November 30, 2011, Respondent filed an Opposition, and on December 14, 2011, Petitioner filed a Reply. On January 3, 2012, Petitioner filed a Supplemental Brief addressing the merits of his federal claims under section 2254 ["Pet. Merits Brief"]. On February 23, 2012, Respondent filed a Response ["Merits Resp."], and on March 9, 2012, Petitioner filed a Reply ["Merits Reply"].


The Court refers the parties to the lengthy statement of evidence issued by the California Supreme Court in Carter, 36 Cal. 4th at 1221-37 (San Diego convictions and death sentence) and People v. Carter, 36 Cal. 4th 1114, 1128-37 (2005) (Los Angeles convictions and death sentences). The California Supreme Court's factual findings are presumptively reasonable and entitled to deference in these proceedings. See Sumner v. Mata, 449 U.S. 539, 545-47 (1981).

In order to provide a context for the Court's discussion of Petitioner's habeas claims, set forth below is a summary of evidence presented during the guilt and penalty phases.

A. Guilt Phase

While Petitioner was charged with the robbery and murder of Janette Cullins, burglary of Cullins' apartment and the sexual assault and robbery of Barbara S., both acquainted with Petitioner, the prosecution also introduced evidence relating to a prior Ventura County sexual assault and the deaths of four women in Los Angeles and Alameda Counties previously acquainted with Petitioner. Property belonging to each of these women was found in a vehicle Petitioner was driving when arrested and the car in question belonged to one of the Los Angeles County victims. Petitioner was also in possession of a bank card belonging to Ms. Cullins, Cullins' bank passcode was found on a slip of paper in the car, and a man resembling Petitioner...

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