Lacy v. Lewis

• Citation: 123 F.Supp.2d 533
• Decision Date: 12 September 2000
• Docket Number: No. CV 99-1798 JSL (RC).,CV 99-1798 JSL (RC).
• Parties: Durnel LACY, aka Durnell Lacy, aka Verdell Lacy, Petitioner, v. Gail LEWIS, Warden, Respondent.
• Court: U.S. District Court — Central District of California

123 F.Supp.2d 533

Durnel LACY, aka Durnell Lacy, aka Verdell Lacy, Petitioner, v. Gail LEWIS, Warden, Respondent.

No. CV 99-1798 JSL (RC).

United States District Court, C.D. California.

September 12, 2000.

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ORDER

LETTS, District Judge.

Having reviewed the papers filed in connection with this matter and being fully apprised of the relevant facts and law,

IT IS HEREBY ORDERED that Judgment shall be entered granting a conditional writ of habeas corpus, based on petitioner DURNEL LACY'S first claim that the "trial court erred by denying petitioner's motion for self-representation, violating his California and U.S. Constitutional rights." The court did not reach the petitioner's other claims.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable J. Spencer Letts, United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

BACKGROUND

I

On May 8, 1996, in the Superior Court for the County of Los Angeles, a jury convicted petitioner Durnel Lacy, aka Durnell Lacy, aka Verdell Lacy, on one count of possession of rock cocaine in violation of California Health & Safety Code ("H.S.C.") § 11350(a) (count 1), a felony, and one count of possession of a smoking device in violation of H.S.C. § 11364 (count 2), a misdemeanor. Clerk's Transcript ("CT") 84-87. In a bifurcated proceeding, the court found it to be true that petitioner had sustained three prior serious felony convictions, within the meaning of California Penal Code ("P.C.") §§ 667(b)-(i) and 1170.12(a)-(d), and one prior conviction within the meaning of P.C. § 667.5(b). CT 136; Reporter's Transcript ("RT") 639:17-641:8. The court sentenced petitioner under California's Three Strikes law to 25 years to life on count 1 and to a concurrent term of six months in the county jail on count 2. CT 168, 171-72; RT 660:1-661:17.

The petitioner appealed his convictions to the California Court of Appeal, which affirmed the judgment in an unpublished opinion filed October 17, 1997. Return to Petition for Writ of Habeas Corpus ("Return"), Exhs. B-C.¹ On December 4, 1997, petitioner filed a petition for review in the California Supreme Court, which denied the petition on February 18, 1998. Return, Exhs. D-E.

II

The California Court of Appeal, in affirming petitioner's conviction, made the following findings regarding the facts and circumstances underlying the conviction;² At approximately 11 p.m. on the night of October 18, 1995, Deputy Sheriffs John Heald and Daniel Fedele were driving westbound on Imperial Highway from Vermont Avenue in Los Angeles. They observed petitioner jaywalking diagonally across Imperial Highway, from south to north. Deputy Fedele, the driver, pulled the patrol car into a parking lot on the north side of Imperial Highway, intending to detain petitioner for jaywalking. The petitioner was walking toward the parol car. When he was about three feet away, both Fedele and Heald saw him drop an object from his right hand.

Heald and Fedele got out of the car and approached petitioner. Fedele recovered the object which had fallen from petitioner's hand: a ziplock baggie containing what appeared to be two rocks of cocaine. Heald asked for and received permission to search petitioner and recovered a metal cocaine pipe from petitioner's right front pocket.

Michael Best, a criminalist with the Los Angeles Criminalistics Laboratory, testified that the objects in the ziplock baggie were subjected to scientific tests by his supervisor, Gary Chastain. The result of those test was that the objects were composed of .53 grams of a substance which contained cocaine in the free base form.

The petitioner testified that he had crossed Imperial Highway at a slight diagonal, going from south to north. Police officers stopped their car, got out, and began searching him. They asked him where he was going and where he had been, but did not ask for permission to search. The petitioner did not drop anything from his hand. Instead, after petitioner was stopped, Deputy Fedele searched the surrounding area, then returned to the patrol car and said, "Look what I found," or "What do we have here?" The petitioner did not possess cocaine or a cocaine pipe that night.

At the court trial on the prior convictions, the court ordered petitioner to provide fingerprints. The petitioner refused after being informed that a refusal could be construed against him as consciousness of guilt. The prosecution introduced two certified "prison packets" from the Department of Corrections and two from the Los Angeles County Sheriff's Department.

III

On February 22, 1999, petitioner filed his original petition for writ of habeas corpus. On February 24, 1999, the petition was dismissed sua sponte with leave to amend, based on its vague and conclusory allegations. The petitioner filed a First Amended Petition on March 29, 1999. On May 25, 1999, respondent filed a motion to dismiss the First Amended Petition, arguing the petition contained unexhausted claims and that four of the claims were based solely on state law. On June 2, 1999, this Court found that Grounds Four, Six, Eight and Ten of the First Amended Petition failed to state a federal claim and the other claims had been properly exhausted, and ordered respondent to file a return addressing the merits of the cognizable claims.

On July 1, 1999, the respondent filed a return, but contended that a portion of Ground Seven was unexhausted. The petitioner filed a traverse on August 3, 1999. On August 13, 1999, this Court ruled that subclaim two in Ground Seven was unexhausted, and afforded petitioner the option of filing a Second Amended Petition dismissing that subclaim. On September 10, 1999, petitioner filed his Second Amended Petition dismissing the unexhausted subclaim.

The Second Amended Petition ("SAP"), as it now stands, challenges petitioner's conviction on the following grounds:

Ground One — The "trial court erred by denying petitioner's motion for self-representation, violating his California and U.S. Constitutional rights." SAP at 6.

Ground Two — The "trial court erred when it denied petitioner's `Marsden' motion."³ Id.

Ground Three — The "trial court erred when it infringed on petitioner's rights during trial" by not informing the jury that his was a "Three Strikes" case. SAP at 6-7.

Ground Four — The "trial court erred when refusing to sanitize petitioner's priors." SAP at 7.

Ground Five — The "trial court errored [sic] by allowing heresay [sic] testimony during Trial." SAP at 7a.⁴

Ground Six — The petitioner was prejudiced when "the court permitted improper testimony during the sufficiency analysis." Id.

Ground Seven — "The evidence as to count (1) was insufficient at the time petitioner['s P.C. § 1118.1] motion was requested." Id.

Ground Eight — "The Court refused to instruct [the jury] with (Caljic 2.01) ... [although] the prosecutor's case rest[ed] substantially on circumstantial evidence. ..." Id.

Ground Nine — "[T]he cumulative effect[] of the above claimed errors was prejudicial and deprived [petitioner] of [his] Due Process Right[] to a Fair Trial." Id.

Ground Ten — The "Trial Court Abused it's [sic] discretion when it denied Petitioner['s] motion to dismiss one or more priors." Id.

On December 2, 1999, Magistrate Judge Rosalyn M. Chapman appointed Ellen Barry, attorney-at-law, to represent petitioner. On December 20, 1999, Judge Chapman gave notice that an evidentiary hearing would be held regarding petitioner's Faretta⁵ claim (Ground One), and on April 13, 2000, an evidentiary hearing was held. The petitioner was present at the hearing and was represented by Ms. Barry. The respondent was represented at the hearing by Noah Hill, Deputy Attorney General. Oral evidence was received, and petitioner and respondent filed post-hearing briefs.

DISCUSSION

IV

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), effective April 24, 1996, worked substantial changes to the law of habeas corpus. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir.), cert. denied, 521 U.S. 1111, 117 S.Ct. 2497, 138 L.Ed.2d 1003 (1997). Of specific importance to the petitioner's claims are the revisions made to 28 U.S.C. § 2254(d), which now provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 United States Supreme Court has recently clarified the meaning of the key clauses in Section 2254(d):

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies the principle to the facts of the [petitioner's] case.

Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000); see also Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.) ("[A]n "unreasonable application"...