Gray v. Muniz

• Decision Date: 25 March 2020
• Docket Number: No. 2:16-cv-1577 JAM KJN P,2:16-cv-1577 JAM KJN P
• Parties: OLIVER GRAY, Petitioner, v. W.L. MUNIZ, Respondent.
• Court: U.S. District Court — Eastern District of California

OLIVER GRAY, Petitioner, v. W.L. MUNIZ, Respondent.

No. 2:16-cv-1577 JAM KJN P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 25, 2020

FINDINGS & RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2013 conviction for five counts of robbery and the personal use of a firearm, and for being a felon in possession of a firearm. Petitioner was sentenced to thirty years and four months in state prison.

Petitioner asserts the following claims: (1) petitioner was denied federal due process because he was convicted while he was incompetent to stand trial; (2) the trial court denied petitioner the right to due process and a fair trial by a unanimous and impartial jury by failing to inquire into one juror's ability to comprehend the jury instructions, including the reasonable doubt instruction; (3) petitioner was denied due process and equal protection by the prosecution's withholding of exculpatory evidence; (4) trial counsel was ineffective by failing to investigate and discover the prosecution's suppression of evidence; (5) appellate counsel was ineffective for failing to raise the prosecution's suppression of evidence; (6) appellate counsel was ineffective for not raising trial counsel's failure to investigate and discover the prosecution's suppression of evidence; (7) the trial court denied petitioner the right to represent himself at trial; (8) trial counsel was ineffective during proceedings to determine whether petitioner should have received the right of self-representation at trial; and (9) appellate counsel was ineffective for not raising trial counsel's ineffectiveness during proceedings to determine whether petitioner should have received the right of self-representation at trial. After careful review of the record, this court concludes that the petition should be denied.

II. Relevant Procedural History

On February 27, 2013, a jury found petitioner guilty of five counts of second degree robbery (Cal. Pen. Code, § 211), and found true five special allegations that petitioner personally used a firearm during the commission of the crimes (Cal. Pen. Code, § 12022.53(b)). (2 CT 433-37; 4 RT 955-62.) Petitioner had previously entered a no contest plea to the crime of being a felon in possession of a firearm (Cal. Pen. Code, § 12021(a)(1)). (1 CT 21, 291; 1 RT 110-18.)

Petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court on March 28, 2013. (LD 5.) That court denied the petition on April 12, 2013. (LD 6.)

On May 22, 2013, petitioner filed a petition for writ of error coram nobis in the Sacramento County Superior Court, asking the court to vacate a 2009 conviction for first degree residential burglary. (LD 7.)

Ultimately, on June 3, 2013, petitioner was sentenced to a total of thirty years and four months in state prison. (LD 1.)

On July 11, 2013, the superior court denied the previously-filed petition for writ of error coram nobis. (LD 8.)

Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. The Court of Appeal affirmed the conviction on November 4, 2014. (LD 2.)

Petitioner filed a petition for review in the California Supreme Court (LD 3), which was denied on January 21, 2015 (LD 4).

//// On September 8, 2015, petitioner filed a petition for writ of habeas corpus with the Sacramento County Superior Court. (LD 9.) The superior court, in a reasoned decision dated November 6, 2015, denied the petition. (LD 10.)

Petitioner filed a petition for writ of habeas corpus in the Third District Court of Appeal on February 22, 2016. (LD 11.) The state appellate court denied the petition without comment on February 25, 2016. (LD 12.)

Thereafter, on April 11, 2016, petitioner filed a second petition for writ of habeas corpus with the Third District Court of Appeal. (LD 13.) The petition was summarily denied on April 14, 2016. (LD 14.)

On May 16, 2016, petitioner filed a petition for writ of habeas corpus with the California Supreme Court. (LD 15.) On June 29, 2016, the state supreme court summarily denied the petition. (LD 16.)

Petitioner filed the instant petition on July 11, 2016. (ECF No. 1.) Counsel was appointed on November 9, 2016. (ECF No. 10.) A first amended petition for writ of habeas corpus was filed on February 24, 2017. (ECF No. 18.)

On May 9, 2017, respondent filed a motion to dismiss. (ECF No. 24.) Following briefing (ECF Nos. 27-28, 31, 34 & 37), the undersigned issued findings, recommending the motion to dismiss be denied. (ECF No. 38.) Ultimately, the district judge adopted the findings and recommendations and ordered the motion denied. (ECF No. 41.)

On May 18, 2018, respondent filed its answer. (ECF No. 44.) On June 13, 2018, petitioner filed a traverse. (ECF No. 47.)

III. Facts¹

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

FACTUAL AND PROCEDURAL BACKGROUND

We omit a recitation of the underlying facts, as they are immaterial to our resolution of defendant's appeal. For our purposes, it is sufficient to say that in May 2011, defendant was charged with robbery and a number of other offenses stemming from an incident two days earlier. At a hearing near the end of June 2011, defense counsel expressed a doubt as to defendant's competence, and the trial court (Judge Marjorie Koller) immediately suspended the proceedings and ordered that defendant be examined.

Dr. Charles B. Schaffer, a psychiatrist and diplomate with the American Board of Psychiatry and Neurology, conducted a psychiatric evaluation of defendant and produced a report dated July 20, 2011. Dr. Schaffer concluded that defendant had the ability to understand the proceedings and to assist his counsel in a rational manner. Initially, defense counsel requested a trial on the issue of defendant's competency. Subsequently, however, the matter was referred back to Dr. Schaffer for a further evaluation,[¹] and he produced a supplemental report dated October 3, 2011, in which he once again concluded that defendant had the ability to understand the proceedings and to assist his counsel in a rational manner. Two days later, on October 5, the parties submitted the matter based on Dr. Schaffer's supplemental report, and the court found defendant competent and reinstated the criminal proceedings.

[FN 1:] Apparently the matter was referred back to Dr. Schaffer at defense counsel's request based on defendant's "limited cooperation during the initial evaluation and additional information from counsel and defendant's family."

In April 2012, defendant filed a Faretta[] motion. The court (Judge John Winn) appointed Dr. Paul G. Mattiuzzi to determine if defendant was competent to represent himself. Dr. Mattiuzzi examined defendant in May and concluded that defendant was not competent to represent himself. At a hearing in June, the parties submitted on Dr. Mattiuzzi's report, and the court denied the Faretta motion.

Meanwhile, in preparation for trial, defense counsel arranged for a comprehensive neuropsychological evaluation of defendant by Dr. John J. Wicks, a forensic neuropsychologist. Dr. Wicks conducted his evaluation over three days in April and May 2012 and produced a report dated July 16, 2012. Based on that report, defense counsel decided to have a PET scan conducted on defendant's brain to determine if any organic neurological defect could be detected. In August 2012, the parties agreed to continue the trial to September to allow defense counsel to obtain the scan. In September, defense counsel moved for a further continuance because she needed a psychiatrist or neurologist to order the scan and had not yet been able to get the order. Consequently, the court continued the trial again, ultimately setting a trial date in January 2013.

A week before the scheduled trial date of January 17, 2013, defense counsel put the case on calendar so that she could again express adoubt about defendant's competence. This time, defense counsel informed the court that she believed defendant had a developmental "deficiency under [Penal Code section] 1368." She stated that the brain scan was completed in November, and based on her conversations with the neuropsychiatrist who ordered the scan (Dr. Albert Globus), as well as review of the radiologist's report of the scan, there were "confirmed areas of ... brain damage consistent ... with Dr. Wicks' earlier report which was based on family history, on educational records, [and] juvenile probation reports of Mr. Gray dating back to when he was eight years old." Defense counsel contended the scan results were "a hard science confirmation and validation of Dr. Wicks' neuro psych evaluation...." She sought a referral for further examination by "psychologists [who are] available who can focus on developmental disabilities and focus more on his abilities and lack of abilities...."

In opposition to the request for another competency hearing, the People argued that Dr. Wicks's report did not justify a further competency hearing because it did not disclose a substantial change of circumstances or new evidence casting serious doubt on the validity of the prior finding of competence.

The court stated that while both attorneys were "spending a lot of time on Dr. Wicks' report," that report had never been submitted to the court. Defense counsel provided a copy of the report to the court, and the court reviewed the report before calling the matter again later that afternoon. After both attorneys submitted without offering further evidence, the court explained that it was a "difficult case" because the competency issue was considered earlier based on whether defendant "ha[d] a mental illness that require[d] psychiatric treatment and medication," while "[t]

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