Lewis v. Davis

Decision Date20 August 2018
Docket NumberCase No. 1:03-cv-06775-LJO-SAB
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesRAYMOND ANTHONY LEWIS, Petitioner, v. RON DAVIS, Warden of San Quentin State Prison, Respondent.

DEATH PENALTY CASE

MEMORANDUM AND ORDER:

(1) DENYING THE FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS, CLAIMS 1-19, 21-33 ARE DENIED ON THE MERITS, CLAIM 20 IS DENIED WITHOUT PREJUDICE AS PREMATURE; (2) DENYING PETITIONER'S MOTIONS FOR EVIDENTIARY HEARING, RECORD EXPANSION, AND DISCOVERY, and (3) ISSUING CERTIFICATE OF APPEALABILITY ONLY FOR CLAIMS 14, 15, 16, 17, and 18

(Doc. Nos. 58-1, 109, 115, 121)

CLERK TO VACATE ANY AND ALL SCHEDULED DATES AND SUBSTITUTE RON DAVIS AS RESPONDENT WARDEN AND ENTER JUDGMENT

Petitioner, Raymond Anthony Lewis, is a state prisoner, sentenced to death, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented inthis action by Joan Fisher and Brian Abbington of the Office of the Federal Defender.

Respondent, Ron Davis, is named as Warden of San Quentin State Prison. He is represented in this action by Jeffrey Firestone and Stephanie Mitchell of the Office of the California Attorney General.

Before the Court for decision are (1) a February 12, 2013 motion for evidentiary hearing (Doc. No. 109), (2) a February 12, 2013 motion to expand the record (Doc. No. 115), (3) a February 12, 2013 motion for discovery (Doc. No. 121), and (4) the first amended petition (Doc. No. 58-1) record based claims 1-33.2

Having carefully reviewed the parties' filings and the relevant case law and for the reasons set out below, the undersigned finds that: (i) claims 1-19 and 21-33 shall be denied on the merits and claim 20 shall be denied without prejudice as premature, (ii) Petitioner's motions for evidentiary development, record expansion, and evidentiary hearing shall be denied, (iii) the first amended petition for writ of habeas corpus shall be denied, and (iv) Certificate of Appealability shall issue only for claims 14, 15, 16, 17, and 18.

I. BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a March 29, 1991 first amended judgment of death of the Superior Court of California, County of Fresno, in case number 389385-6 following his November 26, 1990 conviction by jury trial of the June 7, 1988 first degree murder and robbery of Sandra Simms (hereinafter "Simms") with findings that he personally used a deadly and dangerous weapon (i.e., a wooden object) and that he committed the murder while engaged in the commission or attempted commission of a robbery. Penal Code §§ 187, 211, 12022(b), and 190.2(a)(17)(i), respectively; see CT 1, 3-6, 323-27, 681-82, 742-44, 961, 1035-40F.3

On June 7, 1988, Petitioner was arrested for the murder of Simms. On June 9, 1988, he was charged with her murder. (CT 1.)

A preliminary hearing was held September 22-23, 1988 (CT 24-321), whereupon Petitioner was held to answer (CT 322).

On October 11, 1988, the Fresno County District Attorney filed an information that charged Petitioner with: Count I - malice aforethought murder (§ 187) with allegations that he personally used a deadly and dangerous weapon (i.e., a wooden object) (Penal Code § 12022(b)) and that he committed the murder while engaged in committing and attempting to commit robbery (Penal Code § 190.2(a)(17)(i)), Count II - robbery (Penal Code § 211). (CT 325-27.)

The information alleged that Petitioner had four prior felony convictions, viz.: (i) murder committed in 1975 (Penal Code § 187), (ii) robbery committed in 1982 (Penal Code § 211), (iii) sale of PCP committed in 1980 (Health and Safety Code § 11379), and (iv) receiving stolen property committed in 1986 (Penal Code § 496.1). It also alleged that he had served prison terms (Penal Code § 667.5(b)).4 (CT 325-27.) The murder conviction was subsequently stricken as Petitioner was then a juvenile. (CT 336-40.)

On October 31, 1989, the People filed a statement of aggravating evidence (Penal Code § 190.3), that listed as factors in aggravation: (i) the nature of the offenses charged, (ii) Petitioner's prior felony convictions, and (iii) his prior criminal activity that involved use of force. (CT 362-64.) Regarding the latter, the prosecution presented evidence of the stricken juvenile murder conviction relating to the burning death of one A. Z. Rogers (hereinafter "Rogers"), that was the subject of an evidentiary hearing at trial.

Petitioner's initial counsel, John Ambry, withdrew due to conflict and was replace by Steven Noxon. (CT 328, 330.) Noxon was relieved following Petitioner's Marsden motionand replaced by appointed trial co-counsel Neal Pedowitz (hereinafter "Pedowitz") and Katherine Hart (hereinafter "Hart"). (CT 345-54, 382-84.)

Petitioner plead not guilty to all counts. (CT 328.) He admitted the three remaining prior convictions and waived his right to trial by jury thereon. (CT 598; RT 7471-73.)

The trial began on October 24, 1990. (CT 526-27.) During the guilt phase, the defense presented medical records of prosecution eyewitness Paul Pridgon and argued he was not competent to testify; that he was mentally deficient and a drug user; and that he had been placed in psychiatric care on numerous occasions.5 (CT 429-46.) Pridgon, in the face of a defense motion that he be subjected to a psychiatric examination (CT 457; see also September 12, 1990 RT 44-45) voluntarily submitted to psychiatric examination (RT 4448-50).

On November 26, 1990, following 6 days of deliberation, the jury returned their guilty verdict and found the "robbery" special circumstance to be true. (CT 595-97; 681-82; RT 7444-52.) The jury also found Petitioner guilty of robbery. (CT 682.)

The penalty phase trial began on December 3, 1990 and lasted approximately 11 days. (CT 695-744.) As noted, the prosecution presented in aggravation the circumstances of the capital crime, Petitioner's prior convictions, and his prior criminal activity involving the use of force. (CT 362-64.) On December 18, 1990, following four days of deliberations, the jury returned a verdict of death. (CT 737-44, 961; RT 8962-65.)

On February 6, 1991, Petitioner filed a motion for new trial and for automatic modification of the death sentence (CT 968-86). The trial court denied the motions on February 20, 1991. (CT 1005-16; 2/20/91 RT 33-53.) On March 6, 1991, following further arguments concerning factors in mitigation (3/6/91 RT 79-87), that court denied a motion to reconsider its ruling on whether to modify the death sentence (CT 1020; 3/6/91 RT 87-88).

On February 14, 1991, Petitioner filed motions seeking modification of the verdict pursuant to Penal Code section 190.4(e), and seeking a hearing on alleged juror misconduct pursuant to People v. Hedgecock, 51 Cal. 3d 395 (1990). (CT 990-1004.) Regarding the latter,Petitioner alleged that jury foreman Paul W. convinced juror Sally B. to vote for death by stating that Petitioner had accepted Jesus Christ and would thus have everlasting life. (CT 990-1004; RT 7431.)

On February 20, 1991, following argument, the trial court denied modification of the verdict, and found the offer of proof in support of jury misconduct inadmissible under California Evidence Code section 1150 and irrelevant. (CT 1005; 2/20/91 RT 4, 8-33; see 2/20/91 RT 53-54.) That court also denied Petitioner's request to call witnesses and denied his request for a hearing. (CT 1005; 2/20/91 RT 4, 8-33; see 2/20/91 RT 53-54.)

On February 25, 1991, the state court of appeal summarily denied Petitioner's request for writ of mandate seeking to reverse the order denying the motion for hearing on jury misconduct. (CT 1017.) On March 5, 1991, the California Supreme Court denied Petitioner's application for stay and petition for review of same. (CT 1019.) Petitioner renewed the motion in the trial court on March 6, 1991 and it was again denied. (CT 1020; 3/6/91 RT 65-68.)

On March 29, 1991, an amended judgment of death was entered. (CT 1040A-1040F.)

On April 22, 1998 Petitioner, through appointed counsel Thomas Kallay, filed his direct appeal. People v. Lewis, Sup. Ct. No. S020032.

On November 24, 1999, Petitioner filed his first state petition for writ of habeas corpus in the California Supreme Court. In re Raymond Anthony Lewis, Cal. Sup. Ct. No. S083842.

On August 2, 2001, the California Supreme Court affirmed the judgment and sentence on direct appeal. People v. Lewis, 26 Cal. 4th 334 (2001). On September 19, 2001, that court denied petition for rehearing. People v. Lewis, S020032.

The petition for writ of certiorari to the United States Supreme Court filed December 18, 2001, Lewis v. California, Case No. 01-7693, was denied on April 22, 2002, 535 U.S. 1019 (2002).

On October 15, 2003, the California Supreme Court summarily denied on the merits all claims in Petitioner's first habeas petition, and found certain claims procedurally barred. Lewison Habeas Corpus, Case No. S083842.

Petitioner initiated this proceeding on December 9, 2003. (Doc. Nos. 1, 2.)

On March 30, 2004, the Office of the Federal Defender and CJA counsel Kevin Little were appointed to represent Petitioner in this proceeding. (Doc. No. 6.)

On February 4, 2005, Petitioner filed his first federal petition for writ of habeas corpus. (Doc. No. 42.) Petitioner, on that same day filed his second state petition for writ of habeas corpus. In re Raymond Anthony Lewis, Case No. S131322. (Doc. No. 50).

On October 12, 2006, the Court ordered this proceeding stayed pending state exhaustion. (Doc. No. 54.)

On June 29, 2007, Lewis filed his third petition for writ of habeas corpus in the California Supreme Court. In re Raymond Anthony Lewis, Case No. S154015. (Doc. No. 75-1.)

On February 20, 2008, Petitioner lodged in this proceeding a first amended petition for writ of habeas corpus (Doc. No. 58-1), that was ordered filed as of July 21, 2010. (Doc. No. 54 at 23; see also Doc. No. 70 at 1.)

On August 29, 2008, attorney Little...

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