Jr. v. Cullen

• Decision Date: 23 July 2010
• Docket Number: Case No. CV 91-04061 MMM.
• Citation: 725 F.Supp.2d 925
• Parties: Kenneth Burton LANG, Jr., Petitioner, v. Vince CULLEN, 1 Warden of California State Prison at San Quentin, Respondent.
• Court: U.S. District Court — Central District of California

725 F.Supp.2d 925

Kenneth Burton LANG, Jr., Petitioner,

v.Vince CULLEN, ¹ Warden of California State Prison at San Quentin, Respondent.

Case No. CV 91-04061 MMM.

United States District Court,C.D. California.

July 23, 2010.

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Kenneth Burton Lang, Jr., Tamal, CA, pro se.

Gwen E. Freeman, Knapp Petersen and Clarke, Glendale, CA, Kerry R. Bensinger, Bensinger Ritt Tai and Thvedt, Pasadena, CA, for Petitioner.

David F. Glassman, Gary A. Lieberman, Office of Attorney General of California, Los Angeles, CA, for Respondent.

DEATH PENALTY CASE

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS WITH RESPECT TO GUILT PHASE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AND BRADY AND NAPUE CLAIMS; FINDING COUNSEL'S PERFORMANCE WAS DEFICIENT AT THE PENALTY PHASE

MARGARET M. MORROW, District Judge.

Petitioner Kenneth Burton Lang, Jr., was convicted of robbery-murder in Santa Barbara, California in 1984, and after a short penalty phase, was sentenced to death. Petitioner's convictions and sentence were affirmed on direct appeal. His collateral claims for relief were rejected by the California Supreme Court without an evidentiary hearing or the issuance of an order to show cause. Petitioner presented his claims to the federal district court in a petition for a writ of habeas corpus that alleged ineffective assistance of counsel, prosecutorial misconduct, and instructional error. On September 11, 1998, Judge James Ideman denied the petition on all grounds. On September 5, 2000, the Ninth Circuit affirmed in part and reversed in part. The Ninth Circuit affirmed Judge Ideman's ruling on petitioner's claims of instructional error and his claim that statements made by the prosecutor misled the jury as to its role in the penalty phase. Lang v. Woodford, 230 F.3d 1367 (Table), 2000 WL 1256886, *1 (9th Cir. Sept. 5, 2000) (Unpub.Disp.), cert. denied, 532 U.S. 977, 121 S.Ct. 1614, 149 L.Ed.2d 478 (2001). The Ninth Circuit also affirmed Judge Ideman's denial of petitioner's request for discovery and an evidentiary hearing on the claim of abuse of prosecutorial discretion in electing to pursue the death penalty. Id. at *2. The Ninth Circuit held that Judge Ideman abused his discretion in denying petitioner an evidentiary hearing on his claim that counsel provided ineffective assistance during the penalty phase because he failed to investigate or present mitigation evidence, and during the guilt phase because he failed to investigate and present mental health evidence that could have corroborated petitioner's belief that he was in imminent danger at the time of the killing. Id. at *1. Finally, the Ninth Circuit concluded that Judge Ideman abused his discretion in failing to hold an evidentiary hearing to determine whether the prosecutor knowingly used coerced and false testimony or in the alternative failed, despite a lack of personal knowledge, to disclose the use of such testimony. Id. at *2.

On remand, the action was assigned to this court. The court set a schedule that provided time for discovery and a date for an evidentiary hearing. Approximately one month before the evidentiary hearing, the parties advised the court that they had agreed to present all evidence via declarations, depositions, and exhibits, and that neither wished to call live witnesses. Based on this representation, the court vacated the evidentiary hearing, and permitted the parties to proffer evidence through direct testimony declarations, deposition excerpts that served as cross- and redirect examination of the witnesses, and documentary exhibits. The court heard oral argument on all issues except the issue of prejudice in the penalty phase on June 26, 2003.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Events of August 1983 and the Killing of Thurman Anderson

Thurman Anderson was shot and killed on August 18, 1983, approximately one mile from the Barrel Springs campground in the Los Padres National Forest. People v. Lang, 49 Cal.3d 991, 1002, 264 Cal.Rptr. 386, 782 P.2d 627 (1989). Anderson had left his home in Camarillo at 12:15 p.m. to go deer hunting. He told his wife he would return by August 21, 1983. The couple had visited the area the previous June and Anderson's wife had helped him prepare a map showing the route from the highway to the campground. According to his wife, Anderson was not in the habit of picking up hitchhikers. Id. at 1003, 264 Cal.Rptr. 386, 782 P.2d 627.

At approximately 8:45 p.m. on August 18, Anderson's motor home was stopped by a California Highway Patrol officer in Atascadero because the tail lights were not working. Petitioner, the driver and sole occupant of the vehicle, told the officer his name was Kenneth Burton Stevens. Petitioner said that he had no identification and that the motor home belonged to his stepfather. Id. Still driving the motor home, petitioner arrived at the Atascadero home of his friend Steve Schroff. Petitioner told Schroff that the motor home belonged to a hunter who had hired petitioner as a chauffeur. Petitioner said he wanted to “go out and party; just have a good time.” Accompanied by Schroff's girlfriend, Terry Davis, petitioner and Schroff drove to a truck stop where Schroff arranged for petitioner to get $13 worth of gas and $87 cash with Anderson's credit card. Petitioner signed Anderson's name on the receipt. Id.

While in the motor home, Davis observed petitioner remove a rifle from its case and show it to Schroff. She also saw petitioner remove a handgun from under the seat. Pointing the gun at Schroff and Davis, petitioner said, “bang, bang,” and laughed. After leaving Schroff and Davis at a motel, petitioner arrived at a restaurant at 10 a.m. and met an acquaintance named Mitchell Bass. With a woman Bass knew, Ines Tinker, petitioner and Bass purchased beer and drank and talked. Bass did not think that petitioner seemed despondent or depressed. Id. at 1003-04, 264 Cal.Rptr. 386, 782 P.2d 627. When Bass asked how petitioner had acquired the motor home, petitioner said that his boss allowed him to use it on weekends. Petitioner showed Bass a rifle and a handgun and pointed the handgun at Bass. Id. at 1004, 264 Cal.Rptr. 386, 782 P.2d 627.

Petitioner fell asleep and was awakened at approximately 6 a.m. by Bass. After driving Tinker and Bass home, petitioner drove back to the motel where he had left Schroff and Davis, and fell asleep in the motor home. He was awakened by Schroff at approximately 8 a.m. and drove Schroff and Davis to their respective places of employment. Later that day, petitioner told Schroff that he was going to fly to San Francisco and would leave the motor home at the airport. Petitioner gave to Schroff the rifle that had been in the motor home. Scroff thought petitioner was “a little jumpy” and that he frequently looked in the rearview mirror while driving. Petitioner used Anderson's credit card once again to purchase gasoline. Id.

Petitioner was arrested at the San Francisco airport at approximately 9 p.m. on August 19 after attempting to carry a bag containing a loaded .32-caliber revolver through a security station equipped with an X-ray screening device. Petitioner said the bag belonged to his brother and he had not known its contents. Petitioner told agents his name was Thurman Anderson. Although he initially denied having identification, he eventually produced a wallet containing Anderson's credit card and driver's license extension. ² Id. After being transported to a nearby police substation, petitioner gave a 1960 birth date and said he lived in Sonoma County. When a computer check of Anderson's birth date revealed a twenty-year disparity in birth dates, petitioner said he was Anderson's son. The bag in which the revolver was found also held an airplane ticket to Seattle, purchased by petitioner, and certain personal effects belonging to Anderson. Id.

On August 24, 1983, Santa Barbara police found Anderson's motor home in the parking lot of the San Luis Obispo airport. On August 26, 1983, police found Anderson's body. The body was face down, with Anderson's hands under his chest, in a grove of trees in a remote area; there was no human trail nearby. ³ The immediate area was searched, but no shell casings, weapons, wallet, or other personal effects were found. Id. at 1004-05, 264 Cal.Rptr. 386, 782 P.2d 627.

Anderson had been shot five times. One bullet entered the chest, traveled horizontally at a 45-degree angle to the body's left side, and penetrated the heart. Three bullets entered behind the left ear and another in the back. Although the precise sequence of the shots could not be determined, forensic experts deemed it likely that the shot to the chest occurred while Anderson was standing, causing a loss of consciousness within five to fifteen seconds. The experts concluded that the remaining shots were fired while Anderson was lying on the ground unconscious. Id. at 1005, 264 Cal.Rptr. 386, 782 P.2d 627. Bullets recovered from the body were consistent with bullets test-fired from the weapon in petitioner's possession, although the bullets were too deformed to permit positive identification. Id.

Petitioner testified at his criminal trial, and stated that after leaving Atascadero on Wednesday, August 17, 1983, he hitchhiked to Santa Monica looking for work. That same evening, he decided to return to Atascadero. Petitioner stated that, by noon the following day, he had hitchhiked to Santa Barbara in the rain. Petitioner accepted a ride from Anderson, who was driving the motor home. Anderson said he was going hunting for a few days and suggested that petitioner join him. Id. The men stopped at a store on Highway 154 where Anderson gave petitioner $100 to buy food and beer. Petitioner drank beer as Anderson drove to the Barrel Springs campground. Id. at 1006, 264 Cal.Rptr. 386, 782 P.2d...