Givens v. Martel

• Decision Date: 14 March 2012
• Docket Number: No. C-07-1448 EMC (PR),C-07-1448 EMC (PR)
• Parties: FRANCOIS P. GIVENS, Petitioner, v. MATTHEW MARTEL, Warden, Respondent.
• Court: U.S. District Court — Northern District of California

FRANCOIS P. GIVENS, Petitioner,

v.MATTHEW MARTEL, Warden, Respondent.

No. C-07-1448 EMC (PR)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Dated: March 14, 2012

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

I. INTRODUCTION

Francois P. Givens, formerly a prisoner of the State of California and now apparently on parole, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is now before the Court for consideration on the merits. For the reasons discussed below, the petition will be denied.

II. BACKGROUND

Givens "was convicted of attempted voluntary manslaughter, infliction of corporal injury on a former cohabitant resulting in a traumatic condition, and assault with a deadly weapon" as a result of an incident on October 5, 2001, in which he "stabbed his estranged girlfriend in the course of a heated discussion." People v. Givens, 2006 WL 187713, *1 (Cal. Ct. App. 2006). Several sentence enhancement allegations were found true. On December 20, 2002, he was sentenced to eight years in state prison.

The state appellate court provided this summary of the evidence:

Appellant was romantically involved with the victim, Leartine Swan, for about two years. The couple lived together at appellant's mother's house from July 2001 to early October 2001. [FN2. All further references to dates are to the year2001 unless otherwise specified. Some of the trial testimony about the events leading up to the incident refers only to days of the week, without specifying the corresponding dates. In the narrative that follows-purely for clarity, and not because the dates make a difference-we have taken judicial notice of various dates based on the calendar for October 2001. (Evid.Code, §§ 451, subd. (f); 452, subd. (h); 459, subd. (a), (c).).)] On Tuesday October 2, appellant told Swan he had contracted a sexually transmitted disease involving "creepy crawly things," and they had an argument about it. Swan testified at trial that she was not aware of having any disease she could have communicated to appellant.

On Thursday, October 4, Swan told appellant that she would be moving in with her mother because her mother needed her. Swan went to appellant's house after work and picked up her things, and then left to spend the night at her mother's. At that point, Swan considered that she and appellant had broken up, but it is not clear from the record whether she had unequivocally communicated that to appellant.

On Friday, October 5, appellant called Swan's mother's house twice. The first time, appellant was calling from Oakland, and spoke to Swan's mother, who called him a "punk bitch." [FN3. The record is unclear as to whether Swan's mother called appellant a "punk bitch" on October 4 or during the morning on October 5, but the issue does not matter for purposes of this appeal.] According to Swan, appellant responded that "he would show [Swan's] mother what a punk bitch is," or "what a punk bitch can do." He never threatened Swan directly, however. When he called the second time, Swan could tell from the area code on her caller identification phone that he was calling from San Francisco, but she could not make out what he was saying.

Swan's mother was concerned because she realized she had said the wrong thing to appellant, so when Swan left for work later that morning, her mother advised her to carry a box cutter "just to scare [appellant] off." Swan was "kind of nervous" about appellant, so she complied, and put the box cutter in the pocket of her jacket.

At around 11:00 a.m., as Swan was walking along Beach Street toward her workplace, she saw appellant standing at a phone booth. Appellant approached her, saying "I'm going to show you what a punk bitch can do." A heated conversation ensued, lasting 10 or 15 minutes, during which appellant angrily accused Swan of lying to his mother and giving him a sexually transmitted disease. Swan told appellant that she had not been having sexual relations with anyone but him, and asked him to leave her alone and let her go to work. Appellant blocked her way, and put his hand in his jacket pocket. When Swan responded by putting her own hand in her pocket where the box cutter was, appellant asked her whether she was "fixin' to do something." According to Swan, appellant then immediately began to stab her, moving so quickly that she never had a chance to pull out her box cutter.

Swan's loud cries for help drew the attention of several passersby, one of whom pulled appellant off Swan, while another called 911 to summon the police and paramedics, and a third chased appellant away and then pressed his shirt to Swan's neck in an effort to stop the severe bleeding in her neck area. When the paramedics arrived, they cut off Swan's clothing, including her jacket, in the course of giving her emergency treatment. The box cutter was later found on top of a box in the scooter store where Swan had taken refuge from appellant's assault, but the witnesses at trial, including the investigating police officers, were unable to explain how it got there. Photographs of the box cutter taken by one of the investigating officers on the sceneshowed it to be unopened, which was consistent with Swan's testimony.

While the passersby were helping Swan in the scooter store, appellant yelled out from across the street, saying "She had it coming. That bitch gave me AIDS," and "She deserves to die." Appellant then walked away from the scene, and some of the passersby followed him as he proceeded toward a taxi stand a few blocks away. By the time appellant reached that area, one of the passersby was able to flag down a police car and point appellant out as the assailant. The officer in the car, who had heard a police radio broadcast about the assault, drew his gun and ordered appellant to lie on the ground. The knife then fell out of appellant's pocket and was taken into evidence. As appellant was being handcuffed, he exclaimed, "The bitch had a straight razor. No she had a box cutter. [FN4. Appellant's self-defense claim was premised on the theory that Swan attacked him with the box cutter before he stabbed her. In support of this contention, appellant's trial counsel stressed that nothing in the evidence explained how appellant knew, at the time he made this remark, that Swan had been carrying a box cutter. Swan testified at trial that she neither pulled out the box cutter nor told appellant that she had it; that he could not have seen it in her pocket; and that she had never carried a box cutter with her before. When Swan was interviewed at the hospital after the assault, she failed to mention the box cutter. None of the eyewitnesses who testified at trial saw Swan wielding any weapon, but this testimony is not conclusive, because none of them saw the knife in appellant's hand either. The prosecutor argued that in mentioning the box cutter at the time of his arrest, appellant was attempting to concoct a self-defense theory, and simply made a lucky guess.] You're not going to find it. I cut the bitch. She gave me AIDS. She's my ex-girlfriend, the bitch."

Swan was taken to the hospital, where a medical examination revealed that she had suffered five knife wounds, including a life-threatening one that penetrated the left side of her neck. Extensive surgery was required to repair the wound, and Swan spent about three days in the hospital. At the time of trial, she still had visible scars on her neck and arm as a result of the assault, and she had been advised to have plastic surgery to try to reduce the neck scar. She also suffered permanent paralysis of part of the left side of her face, which interfered with the functioning of her left eye and eyelid, because appellant's knife had severed a nerve in her neck.

The information that was filed against appellant on March 11, 2002, charged him with three counts: (1) attempted first-degree murder (Pen. Code, §§ 187, 664 [FN5. All further statutory references are to the Penal Code unless otherwise specified.]); (2) infliction of corporal injury on a former cohabitant (§ 273.5, subd. (a)) (corporal injury); and (3) assault with a deadly weapon (§ 245, subd. (a)(1)) (assault). Each count also alleged enhancements for use of a deadly weapon under section 1192.7, subdivision (c)(23), and for infliction of great bodily injury under both section 12022.7, subdivision (e) (domestic violence), and section 1192.7, subdivision (c)(8) (personal infliction on a non-accomplice). The first and second counts alleged additional enhancements for use of a deadly weapon under section 12022, subdivision (b)(1).

On July 5, 2002, appellant's appointed defense counsel expressed doubts as to his client's competency to stand trial, and the proceedings were suspended pending receipt of a report on that subject. On August 2, 2002, the court found appellant competent to stand trial.

Jury selection for appellant's trial began on September 25, 2002, and the jurywas sworn on October 1, 2002. The trial took less than two full days, and the jury deliberated for one full day and part of a second day. The jury found appellant not guilty on the attempted murder charge in count one, but found him guilty of attempted voluntary manslaughter as a lesser included offense, as well as on counts two (corporal injury) and three (assault); and returned true findings on all of the enhancement allegations.

Appellant then successfully moved to exercise his right of self-representation, and filed a written motion for new trial on his own behalf. The motion for new trial was heard and denied on December 20, 2002. On the same day, appellant was sentenced to eight years in prison. He filed a timely notice of appeal on December 27, 2002.

Ex. 9, California Court of Appeal Opinion (hereafter "Cal. Ct. App. Op."), at 2-6 (as amended by "Order Modifying Opinion and Denying Request for Rehearing," Ex. 10).¹

Givens appealed. The California Court of Appeal...