Chavez v. Pulley

• Decision Date: 10 December 1985
• Docket Number: Civ. No. S-83-691 MLS.
• Citation: 623 F. Supp. 672
• Parties: Luis CHAVEZ, Petitioner, v. Reginald PULLEY, Respondent.
• Court: U.S. District Court — Eastern District of California

623 F. Supp. 672

Luis CHAVEZ, Petitioner, v. Reginald PULLEY, Respondent.

Civ. No. S-83-691 MLS.

United States District Court, E.D. California.

June 25, 1985.

Amended December 10, 1985.^*

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Luis Chavez, pro se.

William G. Prahl, Deputy Atty. Gen., Sacramento, Cal., for respondent.

AMENDED ORDER

MILTON L. SCHWARTZ, District Judge.

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, petitioner alleges that the trial court denied him due process of law when it ordered him removed from the courtroom during trial, that the trial court improperly denied his request for substitution of counsel, and that he was denied the effective assistance of trial counsel.

After reviewing the papers and lodged records of the state court, this court has determined that the application must be denied.

FACTS

The following summary of facts is taken from the unpublished opinion of the California Court of Appeal and from this court's own independent review of the evidence as presented at petitioner's trial and of the entire trial court record.

At about 1:37 a.m. on November 3, 1980, a man entered a convenience market and pointed a sawed-off shotgun at the night clerk, Mark Ortega. The robber was wearing a "green khaki-colored" sic jacket and pants and a white T-shirt, and had a mustache. Ortega was alone in the small store, working at the end opposite the door where the robber walked in. When the robber said "get the money," Ortega walked to the cash register and put most of the register's contents into a paper bag. While he did so, he periodically looked up and glanced at the robber. Ortega was then told to lie on the floor, did as he was told and heard the footsteps of the robber leaving the store and crossing a gravel area outside it. The entire incident lasted between 30 and 40 seconds. Portions of the robbery were captured on video tape by an automatic camera focused on the area of the cash register.

After the robber left the store, Ortega phoned the police and described the crime and the robber. He estimated to police that about eighty dollars had been taken, including approximately ten dollars in quarters, five dollars in dimes and over twenty-five one-dollar bills. Two city police officers were in a patrol car when they received a radio dispatch at about 1:38 a.m. concerning the robbery. They responded by driving to an area within four blocks of the convenience store, where they saw a man walking on the sidewalk about 100 feet from their car who matched the broadcast description of the robber. As the patrol car approached, the man changed direction and hid behind the fence of a nearby house. The officers then saw the man running along the fence, and as they pursued him, he jumped the fence.

At that point additional police units were called. A police dog led them to petitioner, who was found crouched in the bushes near the front porch area of the same house. Petitioner was wearing a green shirt, with a white T-shirt underneath it, and green pants; the green clothing was described by one of the officers as being "similar to Army fatigue." Police recovered fourteen one-dollar bills and $16.75 in change, mostly quarters and dimes, from petitioner. Crumpled currency totaling $45 was also found lying on the ground near where petitioner was taken into custody. The total recovered from the area, including petitioner's person, was $75.75.

Shortly after 2:00 a.m. store clerk Ortega was taken by police to the scene where petitioner was captured. While seated in the patrol car, Ortega identified petitioner, who was in custody, as the robber. Several officers searched for a weapon at the time of petitioner's arrest and again later that morning. The search covered the area of petitioner's flight and capture, as well as several possible routes from that scene to the convenience store. No weapon was ever found.

Petitioner was charged with robbery and the use of a firearm in the commission thereof. During two pretrial hearings petitioner orally requested that the court appoint new counsel and discharge his current attorney, and he later filed a declaration in support of that request. On the day before trial, the court held a hearing on petitioner's request for substitution of new counsel and denied the same.

On the second day of petitioner's jury trial, after the prosecution had rested, petitioner's removal from the courtroom was ordered by the judge when he persistently interrupted the judge despite the latter's warnings concerning his behavior. After a brief recess during which counsel spoke with petitioner, the court ruled that the trial should continue in petitioner's absence. Petitioner's counsel, who had planned to call him as a witness at that point, did not put on a case. After closing arguments, the jury, after deliberating for approximately an hour and twenty minutes, found petitioner guilty of committing robbery with the use of a firearm. He was later sentenced to state prison for a term of eight years, the sentence having been enhanced by petitioner's admission of a prior felony conviction.

Petitioner appealed this conviction to the California Court of Appeal, asserting, among other grounds, the denial of his motion for appointment of new counsel and his removal from the courtroom. The Court of Appeal affirmed the judgment of conviction on November 19, 1981. Petitioner did not file either a petition for rehearing in the Court of Appeal or a petition for hearing in the California Supreme Court. However, subsequently petitioner did file petitions for writs of habeas corpus in the California Superior Court, Court of Appeal and Supreme Court. His petition to the Supreme Court alleged the same grounds as those raised in the application before this court. The Supreme Court denied the petition on July 28, 1982, and petitioner then filed the present application.

PROCEDURAL DEFAULT

The California Supreme Court's order denying petitioner's application for a writ of habeas corpus cites two cases, In Re Waltreus, 62 Cal.2d 218, 225, 42 Cal.Rptr. 9, 397 P.2d 1001 (1965), and People v. Pope, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859 (1979). Respondent argues that the citation of In Re Waltreus constitutes a rejection of two of petitioner's claims on procedural grounds, and not on the merits of those claims, and that therefore petitioner is barred, based on the doctrine of procedural default, from raising those claims in federal court.

Failure to comply with state procedural rules may bar consideration of a claim in federal court absent a showing of "cause" for the failure and actual "prejudice" resulting from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Maxwell v. Sumner, 673 F.2d 1031, 1033 (9th Cir.1982), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982). "For reasons of comity and respect for the function of procedural rules in our judicial system, courts view the failure to present a federal claim in accordance with certain procedural rules to be an independent and adequate ground for a state court judgment." Maxwell, 673 F.2d 1034, citing County Court v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979). This doctrine is designed to ensure that state courts have a genuine opportunity to reach the merits of petitioner's federal contentions before they can be presented to the federal court. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). However, if the federal court determines that no procedural rule exists, or if the state court does not apply its own procedural rule and decides a claim on the merits, comity is not offended by the federal court's subsequent hearing of the same claim. See Maxwell, 673 F.2d 1031; County Court v. Allen, 442 U.S. at 154, 99 S.Ct. at 2223. Accordingly, this court must first determine whether petitioner failed to comply with a state procedural rule and if so, whether the California Supreme Court relied on such a rule in rejecting petitioner's claims.

In Waltreus, on the page cited by the California Supreme Court in its order, the Court found that petitioner Waltreus' "arguments were rejected on appeal and habeas corpus ordinarily cannot serve as a second appeal." In Re Waltreus, 62 Cal.2d at 225, 42 Cal.Rptr. 9, 397 P.2d 1001. Respondent argues that Waltreus announces a procedural rule, which bars the use of state habeas corpus to raise claims that could have been brought on direct appeal and were not, or that have already been brought on appeal and rejected. While respondent is correct in this assertion, he is not correct in the contention that this state procedural rule results in a bar of federal habeas review of the issue(s) in question.

This very contention was rejected by the Ninth Circuit in Maxwell, 673 F.2d 1031. The court there held that a citation to Waltreus by the California Supreme Court, in denying state habeas relief, is an indication that the claim or claims raised have been considered and rejected on their merits by the California Court of Appeal, and the claim(s) will therefore not be considered again in a habeas petition to the California Supreme Court. The Ninth Circuit further held that because the California Court of Appeal reached the merits of the claim(s), no procedural default exists in such a situation. Maxwell, 673 F.2d 1035.

Accordingly, this court finds in the present case that there is no adequate or independent state ground, i.e. a procedural ground, for denying any of petitioner's claims and that they may be considered on their merits.

REMOVAL FROM COURTROOM

On the second day of trial, outside the presence of the jury, defense counsel orally moved for a continuance of one to two weeks in order to permit petitioner to contact favorable witnesses. As counsel completed his...