Hoover v. Carey

• Decision Date: 07 September 2007
• Docket Number: No. C 99-4568 JL.,C 99-4568 JL.
• Citation: 508 F.Supp.2d 775
• Parties: Crossan D. HOOVER, Jr., Plaintiff, v. Thomas L. CAREY, Warden., Defendants.
• Court: U.S. District Court — Northern District of California

508 F.Supp.2d 775

Crossan D. HOOVER, Jr., Plaintiff, v. Thomas L. CAREY, Warden., Defendants.

No. C 99-4568 JL.

United States District Court, N.D. California.

September 7, 2007.

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Nina Wilder, Weinberg & Wilder, San Francisco, CA, for Plaintiff.

Ronald S. Matthias, Dane R. Gillette, CA State Attorney General's Office, San Francisco, CA, for Defendants.

ORDER GRANTING A WRIT OF HABEAS CORPUS

LARSON, Chief United States Magistrate Judge:

I. Factual and Procedural Background

A. Court of Appeal Decision and Findings of Fact

Crossan David Hoover, Jr. was convicted June 22, 1984 of first degree murder, with use of a deadly weapon. Five days after his conviction, the jury found him to be legally sane. The California Court of Appeal, King, J., affirmed his conviction and the California Supreme Court denied review. The court of appeal found the facts to be as follows:

"The killing occurred within the context of a bizarre conspiracy, led by Mark Richards, for a paramilitary takeover of Marin County and creation of a modern-day Camelot with Richards as King Arthur and his crew of teenaged construction workers as his knights. Richards, a 29-year-old contractor, employed a number of teenagers, including 17-year-old Hoover. In regular meetings, Richards promoted his plan to isolate Marin County by destroying the Golden Gate and Richmond-San Rafael bridges and to defend the new kingdom through the use of laser guns placed on Angel Island and Mt. Tamalpais. The conspiracy was called Pendragon.

"Richards developed financial difficulties in mid-1982. He decided to kill his friend Richard Baldwin in order to obtain money. Baldwin was known to carry large amounts of cash.

"After failing in an attempt to solicit two of his followers to kill Baldwin, Richards turned to Hoover and another teenaged employee, Andrew Campbell. He told them Baldwin owed him money and was a "Nazi" and a "faggot," and it "would be a service to the public to get rid of such a menace." The two agreed to participate in the killing in exchange for a share in the proceeds from the sale of property to be taken from Baldwin's house, as well as lodging in a remodeled portion of Richards' house. Hoover later stated he had expected to receive $5,000, a car, and a place to live.

"On July 6, 1982, Richards drove Hoover and Andrew to Baldwin's house to work on a construction job there. In the afternoon, pursuant to a plan devised by Richards, he asked Baldwin to show him and Hoover classic cars located in Baldwin's auto shop. The three left around 2 p.m. in Richards' truck. Andrew stayed behind and searched the house.

"At the shop, upon a prearranged signal from Richards, Hoover struck Baldwin on the head with a baseball bat. Hoover then stabbed Baldwin in the head with a screwdriver and in the chest with a chisel.

"Richards and Hoover returned to Baldwin's house. With Andrew, they took $3,000 in cash and various other items from the house, including guns and marijuana. Later that day Richards bought a boat, using Baldwin's' money to make a down payment. he and the two teenagers retrieved Baldwin's body from the auto shop and used the boat to dump the body in San Francisco Bay.

"Over the next few days Hoover admitted the killing to several persons. Baldwin's body was found on July 13. The next day the Marin County Sheriffs Department received an anonymous telephone call which led to the arrest of Hoover and Richards on July 16." People v. Hoover, 187 Cal.App.3d 1074, 1078, 231 Cal.Rptr. 203 (1986), rev. denied February 25, 1987.

The judgment was affirmed on appeal and the California Supreme Court denied state habeas relief, although arguably not on all claims contained in this federal habeas petition.

B. Habeas Petition

Hoover filed, pro se, a petition for writ of habeas corpus on October 14, 1999. The parties consented to this Court's jurisdiction pursuant to 28 U.S.C. § 636(c) and Civil Local Rule 73. Respondent moved to dismiss, as the petition was filed after the expiration of the one-year limitation period set forth in 28 U.S.C. § 2244(d). This Court in its order filed September 26, 2002 (Docket Number 21) held that Hoover was entitled to equitable tolling, and also to appointed counsel, if he qualified financially, due to the complex procedural and legal issues of the case, as well as Hoover's limited education and possible learning disabilities.

This Court concluded that equitable tolling was warranted based on Hoover's lack of access to his case files or to the trial record between April 1996 and the summer of 1998. His attorneys had ignored his pleas for his files and the records at the Marin County Courthouse had been destroyed in a flood and had to be reconstructed from microfiche.

This Court, therefore, unconditionally rejected Respondent's motion to dismiss the petition on the grounds of untimeliness and directed Hoover to prepare and submit a Financial Affidavit to verify his eligibility for appointed counsel.

Respondent did not appeal the Court's denial of its motion to dismiss Hoover's petition as untimely.

C. Motion to Strike

Initially the case was referred to the Federal Public Defender to represent Hoover but panel counsel was appointed September 24, 2003 and began reviewing the voluminous file. Hoover's appointed counsel filed an amended petition on July 13, 2005. The petition raised several claims that had not been raised in the original petition. Respondent moved to strike those claims as untimely and not relating back to the original petition.

The Court by its order of December 12, 2005 struck from the amended petition Hoover's claim of ineffective assistance of counsel for failure to plea bargain and for failure to appeal the trial court's denial of a motion for a change of venue and for the trial court's failure to hold a hearing on a juror's fitness to deliberate or to seat an alternate juror during the sanity phase of his trial. The Court struck all these claims based on their not relating back to exhausted claims in the original petition. The Court issued an order to show cause.

Respondent filed an answer and supporting exhibits June 20, 2006. Hoover filed a Traverse September 11, 2006. After a status conference in early 2007 the parties briefed issues for in evidentiary hearing. The Court conducted a hearing on April 30, 2007. The parties argued their respective positions but presented no new evidence.

D. Amended Petition

Hoover was able to maintain the following cognizable claims: 1) the State violated his due process rights by giving an incorrect jury instruction on sanity; 2) Hoover received ineffective assistance of counsel because his attorney failed to object to the prosecution's inconsistent theories and manipulation of the prosecution expert's testimony. 3) the State violated his due process rights by using inconsistent theories in the successive trials of Hoover and his codefendant Richards; and 4) the State violated his due process rights by withholding evidence from its expert witness to manipulate the expert's testimony.

II. Standard of Review

A. Generally

This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

The writ may not be granted with respect to any claim that was addressed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Clark, 331 F.3d at 1069.

Furthermore, habeas relief is available where the state court of appeal fact-finding is unreasonable, by clear and convincing evidence. A "determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). The "presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact." Sumner v. Mata, 455 U.S. 591, 592-593, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); Norton v. Spencer, 351 F.3d 1, 6 (1st Cir.2003).

Clear and convincing evidence is evidence which produces in the mind of the trier of fact an abiding conviction that the truth of a factual contention is "highly probable." Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984). Only after a petitioner successfully rebuts the presumption of correctness by clear and convincing evidence may the court determine if the resulting decision was based on an unreasonable determination of the facts. Miller-El v. Cockrell, 537...