Cottrell v. Trimble, 1:04-cv-05943-SMS-HC
| Decision Date | 25 July 2012 |
| Docket Number | 1:04-cv-05943-SMS-HC |
| Parties | DALE LLOYD COTTRELL, Petitioner, v. ROBERT H. TRIMBLE, et al., Respondents. |
| Court | U.S. District Court — Eastern District of California |
ORDER DIRECTING THAT P. D.
BRAZELTON, ACTING WARDEN OF
PLEASANT VALLEY STATE PRISON, BE
SUBSTITUTED AS RESPONDENT
PURSUANT TO FED. R. CIV. P. 25(d)
ORDER DISMISSING PETITIONER'S
STATE LAW CLAIM CONCERNING
APPOINTMENT OF COUNSEL
ORDER DENYING THE FIRST AMENDED
PETITION FOR WRIT OF HABEAS
CORPUS (Doc. 58)
AND DIRECTING ENTRY OF JUDGMENT FOR RESPONDENT
ORDER DENYING PETITIONER'S
REQUESTS FOR EVIDENTIARY HEARING
AND DNA TESTING
ORDER DECLINING TO ISSUE A
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the parties' consent and the subsequent order of the Court filed on February 25, 2005, the matter has been referred to the Magistrate Judge for allproceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73(b), and Local Rule 301. Pending before the Court is the first amended petition (FAP) for writ of habeas corpus, filed on September 26, 2007 (doc. 58).
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. -, -, 131 S.Ct. 13, 16 (2010) (per curiam).
Plaintiff claims that in the course of the proceedings resulting in his conviction, he suffered violations of his Fifth, Sixth, and Fourteenth Amendment rights. Thus, violations of the Constitution are alleged.
Further, the conviction challenged arises out of the Madera County Superior Court (MCSC), which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).
On February 4, 2005, Respondent's counsel filed a notice of appearance for Respondent James A. Yates, Warden of PVSP. Petitioner had thus named as a respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242and Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
Reference to the Adult Facilities Locator on the official website of the California Department of Corrections and Rehabilitation (CDCR) reflects that currently, P. D. Brazelton is the Acting Warden of PVSP. Fed. R. Civ. P. 25(d) provides that a court may at any time order substitution of a public officer who is a party in an official capacity whose predecessor dies, resigns, or otherwise ceases to hold office. The Court therefore concludes that P. D. Brazelton, Acting Warden of the Pleasant Valley State Prison, is an appropriate respondent in this action, and that pursuant to Fed. R. Civ. P. 25(d), he should be substituted in place of James A. Yates.
In summary, the Court concludes that it has jurisdiction over this action and over Respondent Brazelton.
Petitioner is incarcerated at Pleasant Valley State Prison (PVSP), located in Coalinga, California, pursuant to a judgment of the Superior Court of California, County of Madera, of conviction following a jury trial of second degree murder (Cal. Pen. Code § 187(a)) with personal use of a firearm (Cal. Pen. Code §§ 1203.06(a)(1), 12022.5(a)). (Clerk's Transcript (CT), LD1 17, 30.)
An initial preliminary hearing was held on February 18, 1998, at which Petitioner was represented by David Smothers.(Unpaginated Supplement to habeas corpus petition [HC2, Cal. Supreme Ct. no. S115848] received Jan. 27, 2004, mot. to set aside information pursuant to Cal. Pen. Code § 995 at 2.) A motion to set aside the information made by Mr. Smothers was granted. (Id., decl. of David Smothers, Esq., dated April 30, 1999.) A second preliminary hearing was held on September 11, 1998, and Petitioner was held to answer. (LD 19.)
The trial commenced on January 19, 1999, and concluded on January 22, 1999. (RT (LD 20-21) 6, CT 30.) On June 18, 1999, the trial court denied a motion for a new trial in which Petitioner challenged the adequacy of his trial counsel's investigation and performance at trial. The ineffective assistance claim was based on counsel's alleged failure to 1) investigate and present forensic evidence, and 2) contact, investigate, and present as a witness Michael Avila, who could have testified to potentially impeaching statements made by a jailhouse informant, Rudy Sanchez, who had testified to Petitioner's extra-judicial admissions at Petitioner's trial.
On June 18, 1999, the court sentenced Petitioner to fifteen (15) years to life for second degree murder plus four (4) years for the personal use of a gun. (CT 206-208.) The four-year enhancement was stricken on June 25, 1999. (CT 210.)
Petitioner appealed to the California Court of Appeal, Fifth Appellate District (DCA) (no. F033539) on the grounds argued in the motion for a new trial, namely, that he had been denied his right under the Sixth and Fourteenth Amendments to the effective assistance of counsel. (Appellant's Opening Brief (AOB), LD 1, 12-18.) During the pendency of the direct appeal in February2001, Petitioner filed in the DCA a petition for writ of habeas corpus (no. F037604, HC1-DCA pet., LD 4 as supplemented on October 7, 2010) in which he raised the issues presented in the appeal concerning the ineffective assistance of trial counsel. Further, in the collateral proceeding, Petitioner presented statements from third parties that the informant, Rudy Sanchez, had recanted his testimony and had stated that he had been cooperating with the authorities in exchange for not being prosecuted for having used drugs during his incarceration in jail. (LD 5.) The DCA affirmed the conviction and denied the habeas petition in an opinion (DCA OP) on October 19, 2001. (Pet., Exs. Vol. II (doc. 3) Exh. ["Page"] I.)
Review by the California Supreme Court was summarily denied on January 3, 2002. (No. S102217, Pet., Ex. II (doc. 3).)
Petitioner commenced a second round of habeas review by filing on January 16, 2003, in the Madera County Superior Court (MCSC) a second habeas corpus petition (case no. CV 19645, HC2-MCSC, LD 8) in which he raised the issues he had raised in the first habeas petition filed in the DCA as well as ineffective assistance of trial and appellate counsel for failure to investigate and argue a violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights with respect to pretrial statements of Petitioner (admitted without objection at trial) alleged to have been involuntary and obtained without the appropriate Miranda protocol. (LD 8.) In support of the Madera petition, Petitioner submitted jail and hospital records. (Id.) The MCSC found insufficient justification for renewal of the issue of ineffective assistance of trial counsel on habeascorpus, citing to In re Harris, 5 Cal. 4th 813, 825, 829 (1993). The MCSC further stated that with respect to appellate counsel, Petitioner had failed to show entitlement to relief by a preponderance of the evidence. (Pet., Exs. Vol. II (doc. 3), Ex. III; Att. to FAP (doc. 59), 121-22.)
Petitioner continued his second round of state habeas by filing a habeas petition in the DCA (no. F042700) on March 23, 2003, raising the ineffective assistance of appellate counsel for not having raised claims of trial counsel's ineffectiveness, including the claims relating to Petitioner's pretrial statements, as well as a due process violation by the prosecution by failing to provide evidence regarding the informant pursuant to Brady v. Maryland, 373 U.S. 83 (1963). (HC2-DCA, LD 10.) The petition was denied on April 3, 2003, without a statement of reasoning or authority. (Doc. 59, 124.)
Petitioner completed his second round of state habeas by filing a petition for writ of habeas corpus in the California Supreme Court on May 14, 2003, in which he raised the ineffective assistance of appellate counsel, the Brady issue, and admission of statements that were involuntary in violation of due process and obtained without Miranda protections. (Case no. S115848, HC2-CASC, LD 11.)
The record filed in this Court, including the California Supreme Court's docket as well as Respondent's supplementation and correction of the record filed in 2010, reflects that Petitioner filed numerous documents in the action, including an application to supplement the petition "Received" on August 7, 2003 (LD 12, 1; LD 14); a supplement to the petition to verify aprevious supplement "Received" on January 12, 2004 (lodged as LD 31 by Respondent on October 7, 2010; LD 14); a memorandum to "CLARIFY MINOR CLERICAL 'NUMERICAL' MISLAYS IN SUPPLEMENT HABEAS CORPUS," "Received" on January 27, 2004 (lodged as LD 33 by Respondent on October 7, 2010; LD 14); supplemental exhibits to the petition "Received" on January 27, 2004 (lodged by Respondent as LD 32 on October 7, 2010; LD 14); a supplement to amend the petition and memorandum in support "Received" on February 2, 2004 (LD 13, LD 14); and Petitioner's application to supplement and to amend the petition "Received" on February 2, 2004 (lodged by Respondent as LD 34 on October 7, 2010; LD 14).
In his supplemental filings, Petitioner raised the following issues: 1) allegedly ineffective assistance of trial counsel by failing to investigate and present exculpatory forensic evidence in the form of an opinion of Stephen...
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