Hamilton v. Ayers, CIV. F-90-363-OWWP.

• Decision Date: 30 October 2006
• Docket Number: No. CIV. F-90-363-OWWP.,CIV. F-90-363-OWWP.
• Court: U.S. District Court — Eastern District of California
• Parties: Michael Allen HAMILTON, Petitioner, v. Robert L. AYERS, Jr., Acting Warden of San Quentin State Prison,<SMALL><SUP>*</SUP></SMALL> Respondent.

458 F.Supp.2d 1075

Michael Allen HAMILTON, Petitioner, v. Robert L. AYERS, Jr., Acting Warden of San Quentin State Prison,^* Respondent.

No. CIV. F-90-363-OWWP.

United States District Court, E.D. California.

October 30, 2006.

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Joseph Schlesinger, Federal Public Defender, Sacramento, CA, Katherine Louise Hart, Law Offices of Katherine Hart, Fresno, CA, for Petitioner.

Catherine Chatman, Raymond Louis Brosterhous, II, Office of California Attorney General, Ward Allen Campbell, California Department of Justice, Sacramento, CA, for Respondent.

Final Memorandum Decision and Order Denying Petition for Writ of Habeas Corpus and Granting in Part Certificate of Appealability

WANGER, District Judge.

Petitioner Michael Allen Hamilton ("Hamilton") first appeared in federal court June 12, 1990, requesting a stay of execution and appointment of counsel. Hamilton filed his petition for writ of habeas corpus under 28 U.S.C. § 2254 December 3, 1991, and amended his petition January 11, 1993. Hamilton was ordered to exhaust state remedies March 18, 1993, and his second state habeas petition was filed in July, 1994. After informal briefing, the California Supreme Court issued an order to show cause ("OSC") on July 17, 1996, addressing issues of juror bias and misconduct. The matter was referred to the trial court, a referee was appointed, and an evidentiary hearing was held November 4 and 5, 1997. The California Supreme Court discharged the OSC and denied the petition May 6, 1999, holding the evidence did not show the juror's failure to fully disclose her pretrial knowledge and opinions about the case resulted in the seating of a biased juror since her omissions were inadvertent, and her contemplation of her deceased uncle did not bear on her ability to be fair and was not a pretrial event which she was required to disclose in voir dire. In re Hamilton, 20 Cal.4th 273, 84 Cal.Rptr.2d 403, 975 P.2d 600 (1999). The remainder of Hamilton's claims in his second state habeas petition were summarily denied.

Hamilton filed his fully exhausted petition with supporting points and authorities April 14, 2000. Respondent Robert Ayers ("the State") filed an answer with supporting points and authorities July 19, 2000, and Hamilton's traverse was filed November 20, 2000. Hamilton filed his motion for evidentiary hearing December 5, 2000, and the State's opposition to an evidentiary hearing was filed January 2, 2001. The State was granted leave to file a supplemental opposition to Hamilton's motion for evidentiary hearing January 15, 2002, and Hamilton's response to the supplemental opposition was filed March 1, 2002.

Hamilton's motion for evidentiary hearing was granted in part on Claim 2b, addressing the issue of whether trial counsel's performance was deficient for failing to present mitigating evidence. Claims 8, 10, 12, 14,15, 21, and subclaims a, g, h, i, o, u, w, aj, ak, ao, and as, of Claim 2, were denied an evidentiary hearing and denied on the merits.¹ See Memorandum and Order Granting in Part and Denying in Part Motion for Evidentiary Hearing, dated November 12, 2002.

An evidentiary hearing was held December 3 and 4, 2003, at which testimony was received from Strickland expert Phillip Cherney, trial counsel David M. Liebowitz, defense investigator Danny Wells, and Hamilton. Following the hearing, Hamilton was allowed to supplement the record, and did so with documents filed January 26, 2004. Hamilton filed his post-hearing brief March 16, 2004, and the State filed their post-hearing brief on March 29, 2004.

The State objected to a copy of a letter by Hamilton about his background dated September 20, 1982, first submitted with the supplemental records filed January 26, 2004. See Ex. 133D. The State argued the late submission, fourteen years after the ineffective assistance of counsel claim was raised and after the completion of habeas discovery and the evidentiary hearing, raises serious questions about its authenticity and reliability. The State submitted a declaration from trial counsel stating he was certain he never saw this document. The State contended these issues must be resolved before any weight could be given to this document. The State's motion to reopen the evidentiary hearing was granted and a hearing addressing the limited issue of the credibility of Exhibit 133D was held September 9, 2004. Hamilton filed his supplemental brief October 26, 2004, and the State filed its supplemental brief November 2, 2004.

I. PROCEDURAL HISTORY

Hamilton was convicted of the November 2, 1981 shooting of his wife and their unborn child. The jury found Hamilton personally used a firearm in the murders. Two special circumstances, financial gain and multiple murder, were found true as to Hamilton's wife, and the special circumstance of multiple murder was found true as to the fetus. Hamilton was sentenced to death on December 16, 1982. On direct appeal the California Supreme Court set aside one of the multiple murder special circumstances and otherwise affirmed the judgment in full. People v. Hamilton, 48 Cal.3d 1142, 259 Cal.Rptr. 701, 774 P.2d 730 (1989). Hamilton's first state habeas corpus petition, filed March 14, 1989, was summarily denied August 31, 1989, and certiorari was denied March 19,1990.

II. FACTS

In 1981, Hamilton, his wife Gwendolyn (Gwen) who was pregnant, and their four children, ages six, four, three and one, lived in Bakersfield. RT 7:1725, 1740; RT 9:2039-40. In March of that year, the Hamiltons purchased life insurance policies, $175,000 on Hamilton and $100,000 on Gwen, paying the initial premium for coverage until June. RT 7:1715-17. When they did not pay the second quarterly payment on time, the agent personally collected the payment from Hamilton, extending the policy into September. Id. at 1717, 1722. When the third premium was not received, the agent again visited the Hamiltons on October 17, collecting payment for two months from Gwen, extending the policies into November. Id.

In September, Hamilton began an extramarital relationship with Brenda Burns. RT 8:1798-99. In October, he called his sister Carolyn Hamilton to ask if she knew anyone who would do something illegal for money. Id. at 1852-53. Later he told Carolyn he wanted someone to kill Gwen and offered her $20,000 from the insurance on Gwen's life if she would help find someone to do the killing. Id. at 1855, 1857-60. Hamilton told both Carolyn and his brother-in-law Lyle Palmer that he had a girlfriend, but if he left or divorced Gwen he wouldn't have his kids. Id. at 1857; RT 7:1744-45. Brenda's sister Sharon Burns also testified that Hamilton told her he didn't like the way Gwen was in bed, sexually, and he wanted to divorce her so he could live with Brenda. RT 8:1842.

Carolyn first asked another sister, Victoria (Vicki) Hamilton, who agreed to kill Gwen for $10,000 of the insurance money. RT 8:1861; RT 9:2045. However, Vicki moved to Texas a few days later. RT 8:1959-68. Carolyn then approached Gilbert Garay, a prior acquaintance she met when both worked as security guards for Porterville Private Patrol. Id. at 1856, 1865-67, 1972-77. Gilbert agreed to kill Gwen for $10,000. Id. at 1867, 1974-75.

On October 31, Hamilton and Brenda Burns went to K-Mart in Bakersfield and purchased a single-shot 12-gauge shotgun. RT 8:1776, 1801. Hamilton said he left his identification in the car, so Brenda purchased the gun and shells with money furnished by Hamilton. Id. at 1776; 1802-03,1805-06.

That evening Hamilton, Gwen, and their children drove to Porterville to take their kids trick-or-treating with Carolyn's son. RT 8:1868. While accompanying the children trick-or-treating, Hamilton, Carolyn and Gilbert discussed plans for the murder. Id. at 1869-70. Hamilton told Carolyn he would start to drive his family home, but then stop on Highway 65 claiming one tire was flat, so that Carolyn and Gilbert could drive by and shoot Gwen. Id. at 1869-70, 1982. Carolyn and Gilbert left in Carolyn's truck a few minutes after Hamilton. Id. at 1981. As planned, Carolyn and Gilbert found Hamilton crouched down by the tire with Gwen standing beside him holding a flashlight. Id. at 1872-73. Although Carolyn drove by three to four times, Gilbert never pulled the trigger, so they eventually returned to Porterville. Id. at 1874,1984-85.

Hamilton phoned Carolyn about an hour later to ask what happened. RT 8:1875. Carolyn made excuses and Hamilton said they would come back to Porterville the next day. Id. at 1875-76. The next day Hamilton phoned Carolyn to say he would pretend to have lost his wallet while changing the tire. Id. at 1876-77, 1987. Hamilton and Gwen would stop at the same place on the pretext of looking for his wallet. Id. at 1877, 1987. Carolyn and Gilbert would follow them and shoot Gwen as previously planned. Id.

That evening, Hamilton and his family again visited Carolyn, his mother and stepfather, Jacqueline (Jackie) and Sam Piper, in Porterville. RT 8:1877, 1988. Carolyn and Gilbert followed Hamilton about a half-hour after he left, and found him and Gwen at the same place, looking for the "lost" wallet. Id. at 1878-79, 1989. Carolyn and Gilbert drove by several times, but again Gilbert did not shoot. Id. at 1879-80, 1990-91. Hamilton was mad when he called Carolyn about an hour later, and she made more excuses. Id. at 1881.

The following day Hamilton called Carolyn with a new plan. RT 8:1882. As part of this plan, Carolyn called Gwen and told her that Hamilton's wallet had been found. Id. at 1993. Hamilton and Gwen for the first time left their children with Gwen's sister, who also lived in Bakersfield, and drove a white pickup track to Porterville. RT 7:1726-28. When they arrived, Hamilton...