Lisker v. Knowles

• Decision Date: 06 August 2009
• Docket Number: Case No. CV 04-02687 VAP (RZ).
• Citation: 651 F.Supp.2d 1097
• Court: U.S. District Court — Central District of California
• Parties: Bruce LISKER, Petitioner, v. Michael KNOWLES, Warden, Respondent.

651 F.Supp.2d 1097

Bruce LISKER, Petitioner, v. Michael KNOWLES, Warden, Respondent.

Case No. CV 04-02687 VAP (RZ).

United States District Court, C.D. California.

August 6, 2009.

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Vicki I. Podberesky, William J. Genego, Nasatir Hirsch Podberesky and Genego, Santa Monica, CA, for Petitioner.

Robert D. Breton, CAAG-Office of Attorney General of California, Los Angeles, CA, for Respondent.

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

VIRGINIA A. PHILLIPS, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended Petition, records on file, and the Second Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Second Report to which objections have been filed. The Court accepts the findings and recommendations of the Magistrate Judge.

SECOND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

RALPH ZAREFSKY, United States Magistrate Judge.

Pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California, the undersigned submits this Second Report and Recommendation to the Honorable Virginia A. Phillips, United States District Judge. The undersigned recommends that the Court grant the Second Amended Petition for Writ of Habeas Corpus as to its second, third, and fourth claims if the State of California does not retry Petitioner. The undersigned recommends that the Second Amended Petition be denied as to its first claim for relief.

I. PROCEDURAL BACKGROUND

On November 21, 1985, Petitioner Bruce E. Lisker was convicted of second degree murder. The court sentenced Petitioner to 16 years-to-life in State prison. (Clerk's Transcript ("CT") 368, 378-79; Reporter's Transcript ("RT") 1221-23, 1237.) The California Court of Appeal affirmed Petitioner's conviction on December 22, 1988. (Respondent's May 18, 2004 Motion to Dismiss the Petition ("Motion to Dismiss"), Exh. B.) Petitioner did not petition for review in the California Supreme Court on direct appeal, but instead filed a petition for writ of habeas corpus in that court in 1989. (Motion to Dismiss, Exh. F.) The court denied habeas relief on April 25, 1989, finding that Petitioner failed to allege sufficient facts in support of his claims. (Motion to Dismiss, Exh. G.)

Petitioner again sought collateral review in State court fourteen years later when, on January 31, 2003, he signed a petition for writ of habeas corpus for filing in the Los Angeles County Superior Court; the court denied the petition on March 6, 2003. (Motion to Dismiss, Exhs. H; I.) On July 28, 2003, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal which the court denied on August 5, 2003. (Motion to Dismiss, Exhs. J; K.) In both petitions, Petitioner argued that his delay in raising the claims therein should be excused pursuant to California's "fundamental miscarriage of justice" exception. (See Motion to Dismiss, Exhs. H, at 127-28; J, at 238-40); In re Clark, 5 Cal.4th 750, 797, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) (a petition's untimeliness may be excused where a petitioner presents facts showing that an error of constitutional magnitude led to a trial so unfair that, absent the error, no reasonable juror could have convicted the petitioner). Neither petition was denied as untimely. On August 18, 2003, Petitioner filed in the California Supreme Court a petition for review of the appellate habeas denial; the court denied the petition without comment on October 29, 2003. (Motion to Dismiss, Exhs. L; M, at 304.) Justices Werdegar and Kennard stated that the petition should have been granted. (See Motion to Dismiss, Exh. M, at 304.)

On April 16, 2004, Petitioner filed the Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 initiating the present action in this Court. Petitioner filed his First Amended Petition, deleting an unexhausted free-standing claim of actual innocence, on May 12, 2004. Also in May 2004, Respondent moved to dismiss the action as untimely. Prior to deciding the motion, the Court held an evidentiary hearing over seven days from December 1 to December 9, 2005. Thereafter, the Court recommended that the Motion to Dismiss be denied because Petitioner showed that it was "more likely than not that no reasonable juror would have convicted him in the light of the new evidence" and therefore that his failure to comply with the statute of limitations should be excused. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (developing rule in procedural default case); see also House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (applying Schlup standard in procedural default case).¹ On October 10, 2006, the District Court accepted the Report, adopted its recommendation, and denied Respondent's Motion to Dismiss. See Lisker v. Knowles, 463 F.Supp.2d 1008 (C.D.Cal.2006).

On October 16, 2006, this Court ordered Respondent to file an Answer to the merits of the First Amended Petition. Before the Answer was filed, on November 3, 2006, Petitioner requested leave to file a Second Amended Petition to add claims which had arisen from the evidence adduced at the 2005 evidentiary hearing. Respondent opposed the request and declined to waive the requirement that new claims must first be exhausted in State court. On January 12, 2007, the Court granted Petitioner leave to file the Second Amended Petition and also granted his request to stay the proceedings while he returned to State court to exhaust the new claims. The proposed Second Amended Petition was ordered filed the same day.

On February 13, 2007, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (See Petitioner's February 13, 2007 Notice of Filing of State Petition for Writ of Habeas Corpus.) In a 106-page informal response, Respondent argued at length that Petitioner's claims were successive and untimely raised and therefore procedurally barred. (See Traverse, Exh. A, at 98-183.) The State court agreed and, on November 14, 2007, denied the petition as untimely. (See Petitioner's November 21, 2007 Application for Order Vacating Stay ("Petitioner's App. to Vacate Stay"), Exh. A.)

On December 4, 2007, this Court ordered Respondent to file an Answer to the merits of the Second Amended Petition. Respondent filed his Answer on April 2, 2008. Petitioner filed his Traverse on June 2, 2008.

On July 2, 2008, the Court ordered both parties to clarify by motion whether they were requesting a further evidentiary hearing. Petitioner did not request a further hearing on any claim of his own, but, in an unusual move, on July 28, 2008, Respondent moved for an evidentiary hearing on Petitioner's second claim for relief, a claim alleging that Petitioner received ineffective assistance of counsel. Petitioner opposed the motion, asserting that the claim could be resolved on the existing record. After a hearing on August 18, 2008, the Court granted Respondent's motion. The second evidentiary hearing was held on October 31, 2008. In late November 2008, the parties submitted post-hearing briefing.

II. PETITIONER'S CONVICTION

The facts of Petitioner's conviction are recited in this Court's earlier Report. See Lisker v. Knowles, 463 F.Supp.2d 1008. A portion of the factual background is repeated here to make the record complete.

At 11:26 a.m. on March 10, 1983, Petitioner telephoned paramedics to report that his mother, Dorka Lisker, had been stabbed. The paramedics arrived shortly thereafter and administered emergency care, then transported Mrs. Lisker to the hospital. There she died around 3:00 that afternoon.

Mrs. Lisker had been stabbed multiple times, more than twice in the back, with two knives which were recovered at the house. Also at the scene were a trophy and an exercise bar, both of which police suspected were used to bludgeon Mrs. Lisker, who had extensive injuries to her head and one arm.

Los Angeles Police transported Petitioner to jail where Detective Andrew Monsue interviewed him at length. Petitioner was 17 years old at the time. He told police that, from outside the house through the back windows, he saw his mother lying on the floor in the front entryway. Detective Monsue did not believe this or other aspects of Petitioner's account. Soon after the interview with Detective Monsue, Petitioner was charged with murder.

Petitioner continued to assert his innocence to police, telling Detective Monsue that he believed the actual killer was another juvenile named Michael Ryan. Detective Monsue investigated Ryan's possible involvement and traveled to Mississippi to interview Ryan. Monsue's notes state that Ryan was "convincingly cleared" by further investigation. The case against Petitioner went forward.

Petitioner's murder trial began in November 1984, but was aborted on December 4, 1984, when Petitioner agreed to plead guilty conditioned on his being placed in the California Youth Authority ("CYA"). Such placement would have meant that Petitioner could not be held beyond his 25th birthday. State officials determined, however, that Petitioner was not amenable for CYA placement and, the condition to the plea having failed, Petitioner withdrew his guilty plea.

Trial began anew in October 1985. The prosecution case against Petitioner consisted of various pieces of circumstantial evidence, the first and most important of which was Petitioner's critical and, in the prosecutor's words, "most condemning" lie that, from outside his house, he saw his mother lying on the entryway floor. (RT 1081-82, 1092.) Petitioner did not testify at his trial. His statements were introduced to the jury by way of his interrogation by Detective Monsue.² (See Exhibit from Federal Evidentiary Hearings ("Exh.")³ 86, at 158-209...