Grizzle v. Horel, C 07-4845 SI

• Decision Date: 12 September 2011
• Docket Number: No. C 07-4845 SI,C 07-4845 SI
• Parties: ELIOT SCOTT GRIZZLE, Petitioner, v. ROBERT HOREL, Respondent.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California

ELIOT SCOTT GRIZZLE, Petitioner,

v.ROBERT HOREL, Respondent.

No. C 07-4845 SI

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Dated: September 12, 2011

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

This is a federal habeas corpus action filed by a state prisoner pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is DENIED.

BACKGROUND

In February 1999, petitioner Eliot Scott Grizzle, an inmate of Pelican Bay State Prison, was convicted of murder and conspiracy to murder a fellow inmate, Aaron Marsh. The trial court sustained special allegations of two prison-term priors, plus two serious-felony strike priors, and sentenced petitioner to 37 years to life in prison. Petitioner appealed. The California Court of Appeal for the First Appellate District affirmed the judgment. Pet., Ex. K at 1. The California Supreme Court denied petitioner's petition for review. Id. Petitioner filed state habeas petitions, all denied, in the California superior, appellate and supreme courts. Pet., Ex. O.

The California Court of Appeal's opinion affirming the judgment on direct appeal contains a detailed statement of the facts:

The victim and alleged participants in the crimes were inmates of Pelican Bay State Prison (Pelican Bay), a "level 4" high security prison in Del Norte County, and the murder occurred in the security housing unit (SHU), a lockdown area developed by theDepartment of Corrections (CDC) to segregate especially violent or disruptive inmates from the general prison population, often due to membership in prison gangs. SHU inmates are housed in "pods" consisting of two tiers of four cells each, two men to a cell.

Marsh was murdered in pod D-4. The People's theory was that this was ordered by a governing committee or council of the Aryan Brotherhood (AB) and motivated by gang aspirations and loyalty. Marsh was strangled to death on July 25, 1997, by cellmate Gary J. Littrell, after being given an alcoholic brew called "pruno" that was made and laced with other drugs (indomethacin and methocarbamol) for the occasion by Grizzle, in his own cell. The brew was then delivered to the Marsh/Littrell cell by inmate Michael Contreras. An amended information (hereafter the information) jointly charged Grizzle and Littrell with the murder and conspiracy and alleged four overt acts in furtherance of the conspiracy: (1) that Grizzle dissolved drugs in the pruno to render Marsh drunk and vulnerable, (2) that he had Contreras deliver the mixture to Marsh, (3) that Littrell got Marsh drunk and disabled, and (4) that Littrell strangled him with a "garrote rope" while Marsh was too drunk to defend himself.

Littrell's case was severed and tried first. A jury acquitted him of the conspiracy and found him guilty of the murder, but in the second degree. Some jury misconduct evidently came to light, and he ultimately accepted a plea offer of voluntary manslaughter and attempted murder. Grizzle rejected a similar offer here (voluntary manslaughter with a low term) on the eve of his own trial and proceeded before a jury. Littrell testified for the People, under his plea agreement, but admitted little beyond having strangled Marsh, assertedly in self-defense. But several other SHU inmates testified, including Contreras who admitted taking the spiked pruno to the cell (at Grizzle's request), Brian Healy and Vernon Rubidoux (who heard admissions of guilt), Frederick Clark (who had testified for the defense at Littrell's trial but now said Grizzle had solicited him to lie and, afterward, to locate Healy's young daughter for a retaliatory killing), and Douglas Ridinger (who said he was solicited by the AB to kill Marsh himself, but refused). These witnesses also related the structure and features of the AB and their own and others' gang connections.

. . .

Marsh was murdered on July 25, 1997. Around 4:00 p.m., Littrell calmly told a control booth officer that his "cellie" had fallen and struck his head and "don't look too good." Another officer entered the cell and found Marsh unresponsive. A medical team tried to resuscitate him but pronounced him dead. There were no obvious signs of a fight, but a doctor estimated that Marsh had been dead for several hours. Marsh had apparent shoe prints on his body and marks on his upper chest and throat consistent with tennis shoes. An autopsy showed death by strangulation plus blunt-force trauma to the neck consistent with stomping. Ligature marks on the neck were made with a small diameter cord something like a shoelace (not a larger diameter skip rope found near the body), and a tennis shoe print on Marsh's back was consistent with him having been held face down to the ground while being strangled from above with a garrote. Scratches and overlaid ligature marks showed that he had tried to grasp the ligature.

Marsh's blood-alcohol level was .11 (probably .15 earlier), and his urine showed .15. His stomach contained small flecks consistent with partly dissolved tablets, and tests on his blood, urine, stomach and intestines revealed indomethacin, an anti-inflammatory drug, and methocarbamol, a muscle relaxant that would have contributed to impairment. Littrell had been prescribed a high-range dose of methocarbamol due to a bad back.

Littrell's account was at odds with much of the evidence. He claimed not to be a member of AB or know what it was (despite sporting swastika and "white power" tattoos and having a card in his cell with clovers and "Great White Warrior" on it). He said that he and Marsh (not Grizzle, his former cellmate) concocted the pruno and began drinking it around 10 o'clock that morning. Marsh had taken methocarbamol pills of his own, also for a bad back, and become belligerent and then quiet. (They had fought physically two days earlier.) As Littrell spoke to someone at the door, Marsh came up behind him and tried to hit him and throw a rope around his neck. (Rope burns on the back of Littrell's neck could have been caused by this, or could have been self-inflicted.) Littrell grabbed the rope away and garroted Marsh until he passed out. It was a thin, shoestring-like rope, and Littrell flushed it down the toilet so Marsh could not use it again. When Marsh tried to get up, Littrell grabbed a jump rope (the one found) and "finished it." He reported the incident after Marsh had not moved for an hour.

Ridinger, in prison for carjacking and gun possession, testified that he occupied the cell next to Littrell and Marsh on the upper tier, and that their cell was directly above the one occupied by Grizzle (known to him as "Rascal") on the tier below. Inmates can communicate with cells to the sides and above and below through air vents. On that July 25th, Ridinger smelled pruno coming from both cells and had smelled it emanating from Grizzle's cell for several days. Himself a member of the NLR, one step below the AB in the prison gang hierarchy, Ridinger assumed from Grizzle's "NLR" neck tattoo (shown to the jury) that Grizzle was NLR and first introduced himself as his NLR "homeboy." Grizzle took offense, saying, "I'm not Nazi Lowrider anymore; I'm a Brother." Knowing Grizzle's cellmate Littrell to be AB, Ridinger said lightly, "Well, you graduated." When Ridinger moved to their pod, he brought a message from John Harper ("Turtle") and Marsh in D-6 that they each needed a "celly" and wanted Grizzle and Littrell moved over there. Grizzle told Ridinger that Marsh was "in trouble," and Littrell told him he wanted Marsh moved into D-4 since Marsh was "in the hat" for not "pulling his weight." Grizzle said Marsh "needed to be taken care of." Ridinger, hoping to impress them and have them "raise their hand" for him to "move up" to the AB, volunteered to "whack" Marsh, but the next day, when Ridinger told them his plan to "stab [Marsh] a few times," Grizzle said "that's not gonna work." He explained: "A.B. don't deal like that. We're gonna do something to somebody, we're gonna kill him." Ridinger had not understood this and wrote them a note (kite) declining. Grizzle wrote back: "[Y]ou didn't know what you were getting yourself into anyways," and "Gary's gonna go ahead and do it . . . ." Littrell filed a CDC form 602 requesting a shared cell with Marsh, and Marsh also made the request. He was moved into Littrell's cell just six days before he was murdered.

On the day of the killing, Ridinger saw Contreras slip an envelope under the door of Littrell and Marsh's cell door and assumed it contained pruno. He heard thanks given for it, smelled it, and heard someone say it tasted "kind of funny." The day after, Grizzle warned him that attorneys for Littrell would probably be contacting him and told him to say he heard Marsh and Littrell fight (he had not) a few days before Marsh died and that Marsh had hit Littrell with a TV remote control. Ridinger knew he was in the hat "[b]ig time" for testifying against the AB and had received immunity, time off his sentence and protective housing, in return for his testimony.

Contreras ("Wino") was a "tier tender" for D-4 on that July 25th. On the way to the control booth that morning to use his asthma inhaler, he saw Grizzle squatting on his cell floor by some newspaper, 30 to 60 green capsules (like those found in Littrell's cell), a coffee cup and a milk carton. There was a smell of pruno, and Grizzle was opening the capsules, pouring them into the cup, and tossing the empty capsules into his toilet. On the way back, Contreras asked if he "had the right recipe for the pruno"; Grizzle nodded and said "yeah." As Contreras later passed by after exercise on the yard, Grizzle askedhim to stop by. Contreras did, after a shower, and Grizzle slid a manila envelope under the door and asked him to take it to Littrell. Contreras did, noticing that it felt soft as if containing liquid, and he figured it was spiked pruno and that Marsh was in trouble.

Contreras left his cell again after 1:30 p.m. to do his

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