King v. White
| Decision Date | 04 November 1993 |
| Docket Number | No. CV 93-2607-RJK(E).,CV 93-2607-RJK(E). |
| Citation | 839 F. Supp. 718 |
| Court | U.S. District Court — Central District of California |
| Parties | David Jerome KING, Petitioner, v. Theo WHITE, Warden, et al., Respondents. |
COPYRIGHT MATERIAL OMITTED
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David Jerome King, pro se.
Donald F. Roeschke, Deputy Atty. Gen., Los Angeles, CA, for respondents.
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein by United States mail on Petitioner and counsel for Respondents.
LET JUDGMENT BE ENTERED ACCORDINGLY.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Robert J. Kelleher, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" on May 5, 1993. Respondent filed an Answer on August 4, 1993. Petitioner filed a Traverse on August 19, 1993.
The facts of Petitioner's state court proceedings are well summarized in the California Court of Appeal opinion. Answer Exhibit "A" at 17-20. Briefly, Petitioner's first trial ended in a mistrial. Id. at 20. Petitioner's second trial resulted in convictions for multiple crimes, including one count of sodomy (Count VI) and two counts of oral copulation in concert (Counts VII and VIII). Id. at 17. Petitioner represented himself at both trials.
Petitioner contends:
(1) He was denied a copy of the transcript of his first trial to prepare for his second trial, in violation of the Fourteenth Amendment;
(2) His shackling during the second trial violated the Fourteenth Amendment;
(3) The denial of his motion for "advisory counsel" violated the Sixth Amendment;
(4) The prosecution's failure to elect which acts to present to the jury and the state court's jury instruction on unanimity denied Petitioner due process and the right to a jury trial;
(5) The trial court erroneously imposed full consecutive sentences for Count VI (forcible sodomy) and Count VII (oral copulation) pursuant to section 667.6(c) of the California Penal Code;
(6) The state courts did not apply state law evenhandedly, in violation of due process; and
(7) The cumulative effect of the above-alleged errors demonstrates the errors were not harmless (Petition ¶ 10).
For the reasons discussed herein, the Petition should be denied and dismissed with prejudice.
The facts relevant to this issue are novel and somewhat convoluted. On May 12, 1986,1 Petitioner made a motion for a copy of the transcript of his first trial (Aug. RT 109-10). That motion was granted (Id. at 110). Petitioner's second trial was scheduled for June 17 (Id. at 107). On June 4, Petitioner informed the court that Petitioner had not yet received a copy of the transcript (Id. at 226). Upon investigation, the court determined that "somehow" the order never went to the court reporter and no transcript had been prepared (Id. at 230). The court then informed Petitioner that a copy of the transcript could not be prepared in time for his scheduled trial date (Id.). Petitioner was offered a continuance, which he refused (id. at 231-32). In refusing a continuance, Petitioner apparently relied upon his state statutory right to a trial within 60 days. See Cal.Penal Code § 1382(b). The court then rescinded its order for the transcript (Aug. RT at 232).
Petitioner raised the issue again on June 17 (Id. at 234-35). The court continued the matter until June 18 to speak with the court reporter (Id. at 236-37). On June 18, the court informed Petitioner that, according to the court reporter, it would take three weeks2 to complete the transcript (Id. at 238). The court told Petitioner the transcript "cannot physically be prepared" by the trial date (Id. at 239). The court again offered Petitioner a continuance "for three weeks or for whatever you want" (Id.). Petitioner again refused to waive his state statutory right to a trial within 60 days (Id.).
Petitioner again raised the issue with the court on June 26, the next to last day the trial could begin under state law without Petitioner's consent to a continuance. The court explained that the transcript had not yet been prepared because the court reporter had been on vacation and because no one else could prepare the transcript (Id. at 256-60).3
The court reporter was summoned to court to explain the situation (Id. at 261). The court reporter stated she did not receive notice to prepare the transcript until June 5, the day before she was scheduled to go on vacation, from which she returned on June 13 (Id. at 262). She further testified that the order to prepare the transcript did not have a "date due" on it (Id.). According to the court reporter, the earliest the transcript could be ready was July 7 (Id. at 264). Again, the court offered a continuance, but Petitioner refused (Id. at 264).
Petitioner's second trial began on June 27 (RT at 33). The last prosecution witness called was the victim, who finished her direct testimony on July 7 (RT at 312). On July 8, Petitioner received a partial transcript of the first trial. See Traverse at 7. This partial transcript included the testimony the victim gave at the first trial. Id. The court informed Petitioner that, to prepare the transcript, the court reporter, (RT 317). The trial did not resume until 1:55 p.m. on July 8 in order to allow Petitioner time to review the partial transcript (Id. at 317, 378). On July 9, Petitioner received the balance of the transcript (Id. at 378).4 The court then offered Petitioner additional time to review the remainder of the transcript, which Petitioner accepted (Id. at 378-79). The Court provided Petitioner enough time to read the transcript fully; the court noted that Petitioner had indexed the transcript with approximately 100 markers (Id. at 510, 772, 774).5
During the defense's case, the Court permitted Petitioner to recall prosecution witnesses (CT 239-45). Petitioner did recall three of the five prosecution witnesses (Id.).
In Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971) ("Britt"), the Supreme Court identified two criteria to be used in determining whether an indigent defendant, such as Petitioner, is entitled to a transcript of an earlier trial that resulted in a mistrial: "(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same function as the transcript." Id. at 227, 92 S.Ct. at 434; see also Madera v. Risley, 885 F.2d 646, 648 (9th Cir.1989). The Supreme Court subsequently interpreted the second prong of Britt to require an "adequate alternative." Bounds v. Smith, 430 U.S. 817, 822 n. 8, 97 S.Ct. 1491, 1495 n. 8, 52 L.Ed.2d 72 (1971).
This case turns on the second prong of the Britt test: whether there was an adequate alternative available to Petitioner. Id. at 227, 92 S.Ct. at 433. Implicit in this prong of the Britt test is the requirement that the alternative be constitutionally adequate. Fisher v. Hargett, 997 F.2d 1095, 1099 (5th Cir.1993).
Most courts analyzing the second prong of Britt, including the Britt court itself, have focused upon the proposed method of providing some substitute for a transcript. See Britt, 404 U.S. at 229 n. 4, 92 S.Ct. at 434 n. 4 (trial notes); Mayer v. Chicago, 404 U.S. 189, 194-95, 92 S.Ct. 410, 415, 30 L.Ed.2d 372 (1971) (); United States v. Mullen, 550 F.2d 373, 374 (6th Cir.1977) ().
In the present case, the issue does not concern a method for providing some substitute for the desired transcript. Rather, the issue is whether the trial delay that, under the circumstances, would have been necessary to produce the desired transcript before trial would have provided Petitioner with a constitutionally adequate alternative to beginning trial without the desired transcript. The court repeatedly offered Petitioner a continuance of the trial. Petitioner repeatedly refused this alternative, relying upon his state statutory right to a trial within 60 days (See Aug. RT 230-32, 239, 264). The issue is whether the suggested continuance, which would have allowed the second trial to take place approximately 73-75 days after the mistrial,6 would have been permissible under federal constitutional law. The fact that the continuance evidently would have violated Petitioner's state statutory right to a trial within 60 days is irrelevant. "A federal court may not issue the writ of habeas corpus on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41, 104...
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