Horton v. Mayle

• Decision Date: 10 May 2005
• Docket Number: No. 03-56618.,03-56618.
• Citation: 408 F.3d 570
• Parties: James F. HORTON, II, Petitioner-Appellant, v. Deneice MAYLE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

408 F.3d 570

James F. HORTON, II, Petitioner-Appellant, v. Deneice MAYLE, Warden, Respondent-Appellee.

No. 03-56618.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2004.

Filed May 10, 2005.

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Michael Rubin and Dorothea K. Langsam, Altshuler, Berzon, Nussbaum, Rubin & Demain, San Francisco, CA, for the petitioner-appellant.

Lance E. Winters, Supervising Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Mariana R. Pfaelzer, District Judge, Presiding. D.C. No. CV-97-07298-MRP.

Before B. FLETCHER, RYMER, and PAEZ, Circuit Judges.

Opinion by Judge RYMER; Opinion by Judge PAEZ; Dissent by Judge RYMER.

RYMER, Circuit Judge.

James F. Horton, II, a California state prisoner, appeals from the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We agree with the magistrate judge's analysis, adopted by the district court, and affirm on all issues except for Horton's claim that his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated. As to that claim, the court reverses and remands in a separate opinion authored by Judge Paez.

I

Shortly after 2:30 p.m. on Monday, October 11, 1982, paramedics responded to a call by Carolyn Ebel, the girlfriend of Herschel "Lobo" Bowser, who lived in an apartment on Artesia Boulevard in Los Angeles. They found Bowser lying unconscious on the floor, his head bleeding severely. A hammer was within a foot of the body near a pool of blood. Bowser died at the hospital later that day, having suffered twelve blunt injuries to the head and a fractured skull. The blows were consistent with force applied by the hammer. No fingerprints, blood, or DNA were found at the scene except for one print taken from a tool box, which matched the prints of the victim.

Ebel had left a wallet containing over $100 and the changer from her catering truck in a money bag at Bowser's apartment and testified that Bowser, who was a drug dealer, kept a large amount of cash in the apartment. She saw Bowser in bed asleep about 9:30 in the morning when she went to pick up a paycheck; around noon, she got a call from Tracy Crisp, who lived in the building, saying that Crisp had been unable to reach Bowser on the telephone. As a result of that call, Ebel returned to Bowser's apartment around 2:30 p.m.; the top lock was unlocked and when she opened the door as far as she could (Bowser was on the floor with his legs by the door), she saw that the living room was in shambles. Empty bags were strewn all over, and her wallet as well as the money bag with $40-70 and rolled change was gone. Ebel testified that Bowser kept his cocaine in a butter dish in a cupboard next to the stove in the kitchen, which is where he would take customers to negotiate sales. He stored the cocaine in ziploc plastic bags—two of powdered cocaine and one of rock cocaine—and one of the bags was marked with black "X's." Ebel noticed when she went into the kitchen after the crime that the cover of the butter container was off and the three bags of cocaine that had been in it were gone.

Horton was a customer of Bowser's whom Ebel had seen at Bowser's apartment. In October 1982, Horton lived at the Shangri Lodge, which was managed by Willie Dorn. Michael Graham also lived there and he and Horton did odd jobs for Dorn. One day in October Horton asked Graham for a hammer that belonged to Dorn, which Graham gave him. Graham could not identify the hammer found near Bowser, but Dorn did. He testified that he had owned this hammer for twelve years, that Graham had been using it in October, and that he hadn't seen it for about a week before October 10. At least one of the paint specks on the hammer was similar to the paint used on the Shangri Lodge buildings.

On the morning of October 10, Horton told Dorn that there was something he had to do and, if it worked out, Horton would be moving out the next day. The next day, around 9 o'clock, Dorn saw Horton leave in his car with James ("Doonie") Cunnigan and Anthony Wilson. A few days later, Horton telephoned Dorn and asked if the police had been looking for him. He called back with the question several more times. Horton told Dorn to tell Graham that if anybody asked Graham whether he had given Horton anything to tell them "no."

Donald "Foo" McLaurin was the prosecution's principal witness. The following is taken from his testimony. McLaurin had known Horton since 1979 or 1980. They used drugs together. Horton had taken McLaurin to Bowser's apartment building to buy cocaine, but McLaurin testified that he never went inside. Horton told McLaurin that he bought the cocaine from someone named "Lo" or something like it. Bowser's nickname was "Lobo."

McLaurin testified that he, Horton, Wilson, and Horton's brother William went to Bowser's building on the morning of October 10 and that Horton came out with a bag of cocaine. They went to Ray's Motel where they proceeded to get high, then went to the Shangri Lodge where they were joined by Cunnigan and consumed more cocaine. According to McLaurin, Horton began to discuss a plan to rob his dealer, said that he could use a pipe to "slug him a few times," and indicated he knew his dealer kept cocaine in one of the kitchen cabinets. McLaurin agreed to drive Horton to the dealer's apartment, but instead left with his girlfriend.

About 1 p.m. on the 11th, Horton called McLaurin at work and asked McLaurin to meet him at Ray's Motel. Horton stated that he "did the number he was talking about last night." Horton, Doonie, and Anthony were at Ray's when McLaurin got there. McLaurin saw three bags of cocaine, two with a powdered substance and one with cocaine rocks. There were black "X's" on one of the bags. McLaurin also saw a large roll of money. They began to smoke cocaine.

According to McLaurin, Horton said that he (Horton), Doonie, and Anthony went to the apartments on Artesia. Cunnigan stated that "everything went down pretty smooth." Horton said that he walked into the apartment, the dealer turned his back and closed the door, and Horton clubbed him on the head with a hammer. Horton then went to the kitchen cabinet and grabbed the cocaine. On the way back, Horton's car overheated on the freeway and they left it. At Ray's, Horton asked McLaurin to pick it up. McLaurin and Cunnigan returned to the car and retrieved a gym bag and a couple of bags of marijuana, but left the car. After McLaurin and Cunnigan returned, the group consumed more drugs and then McLaurin drove Horton, Doonie, and Anthony to the Greyhound bus depot.

McLaurin's supervisor testified that McLaurin arrived for work on October 11 at 5:45 a.m. and left at 1 p.m. after receiving a telephone call. Much later, in November 1984, McLaurin was incarcerated on a probation violation and was housed in the same module as Horton. He met with Horton's counsel.

At trial, McLaurin testified that he was in jail for a probation violation based on testing positive for cocaine, that he lied to Horton's attorney when he talked with him because he feared harm if other inmates knew he was a "snitch," and that neither the police nor the district attorney "helped him out" with the sentencing on the probation violation. McLaurin also admitted that he told defense counsel that he had been untruthful about everything he had told the police. He stated that he habitually smoked marijuana, had tried PCP, and had smoked a lot of cocaine the night before the murder; that he wasn't functioning too clearly when the plan was being discussed; and that he was never charged with a crime even though he had driven Horton to the bus depot.

On April 1, 1985 a jury found Horton guilty of first degree murder and robbery, Cal.Penal Code §§ 187 and 211, finding true the special circumstance that the murder was committed during a robbery, Cal.Penal Code § 190.2(a)(17). In a bifurcated proceeding the jury also found true a special circumstance that Horton had a prior murder conviction. Cal.Penal Code § 190.2(a)(2). Following a penalty phase, the jury returned a verdict of death on April 16, 1985. On December 11, 1995 the California Supreme Court reversed the prior murder special circumstance and the death penalty verdict, but otherwise affirmed the judgment. People v. Horton, 11 Cal.4th 1068, 47 Cal.Rptr.2d 516, 906 P.2d 478 (1995). The state elected not to retry the penalty phase, therefore Horton's sentence stands at life in prison without the possibility of parole.

On October 17, 1989 Horton filed a petition for writ of habeas corpus in the California Supreme Court based on his trial by a commissioner instead of a superior court judge, which the court denied on August 12, 1991. In re Horton, 54 Cal.3d 82, 284 Cal.Rptr. 305, 813 P.2d 1335 (1991). He filed a second petition for writ of habeas corpus in the California Supreme Court on April 3, 1995, which the court denied on July 18, 1996.

On October 2, 1997 Horton filed his first federal petition; he filed a Second Amended Petition on March 6, 2001. The district court denied all of Horton's claims on the merits. The court granted a Certificate of Appealability (COA) on four issues that Horton pursues on appeal, and he has requested certification on five additional claims.

II

We review de novo a district court's decision to grant or deny a 28 U.S.C. § 2254 habeas petition. Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir. 2002). Because Horton's petition was filed after April 24, 1996, the amendments to § 2254 under the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. Id. Under AEDPA, Horton is not eligible for habeas relief unless the decision of the California Supreme Court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was...