Vieira v. Chappell

• Decision Date: 05 February 2015
• Docket Number: Case No. 1:05-CV-01492-AWI-SAB
• Court: U.S. District Court — Eastern District of California
• Parties: RICHARD J. VIEIRA, Petitioner, v. KEVIN CHAPPELL, Warden, Respondent.

RICHARD J. VIEIRA, Petitioner,
v.
KEVIN CHAPPELL, Warden, Respondent.

Case No. 1:05-CV-01492-AWI-SAB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

February 5, 2015

DEATH PENALTY CASE

MEMORANDUM AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, and (2) ISSUING CERTIFICATE OF APPEALABILITY FOR CLAIMS 2 AND 6
(ECF No. 37)

ORDER DENYING MOTION FOR EVIDENTIARY HEARING AND EXPANSION OF THE RECORD
(ECF No. 107)

CLERK TO SUBSTITUTE RON DAVIS AS RESPONDENT AND ENTER JUDGMENT

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by Wesley A. Van Winkle, Esq., of the Law Offices of Wesley A. Van Winkle, and Lissa J. Gardner Esq., of the Office of the Federal Defender. Respondent Kevin Chappell¹ is named as the Action Warden of San Quentin State Prison. He is represented in this action by Catherine Chatman, Esq., and Ward Campbell, Esq.,

Page 2

of the Office of the California Attorney General.

I. BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Stanislaus, following his conviction by jury trial on September 6, 1991, of four counts of first degree murder and one count of conspiracy to commit murder for the deaths of Franklin Raper, Richard Ritchey, Dennis Colwell, and Darlene Emmie Paris. The jury found true the alleged special circumstance of multiple murder as to each count. In addition, the jury found that Petitioner personally used a deadly weapon in commission of the murders. The jury determined that the penalty for three of the murder counts and the conspiracy to commit murder count should be death. As the remaining murder count, the jury found that Petitioner should be sentenced to life without the possibility of parole. On March 30, 1992, Petitioner was sentenced to death.

On March 7, 2005, the California Supreme Court reversed the death sentence on the count of conspiracy to commit murder, remanded the matter for Petitioner to be given a sentence of twenty-five years to life for that count, upheld the death sentence as to the other three murder counts and affirmed the judgment in all other respects. People v. Vieira, 35 Cal. 4th 264 (2005) (modified May 26, 2005).

On October 29, 2006, Petitioner filed a federal petition for writ of habeas corpus in this Court. He then filed a petition for writ of habeas corpus in the California Supreme Court on October 31, 2006. In re Richard John Vieira, No. S147688, Cal. Sup. Ct. filed October 31, 2006. (ECF No. 38, Attach. 1.) The Court ordered the federal petition held in abeyance pending exhaustion of state remedies. (ECF No. 43.) On June 24, 2009, the California Supreme Court denied the petition on the merits on each claim, and determined that multiple claims were procedurally barred. (ECF No. 58, Attach. 1.)

On January 8, 2010, the parties filed a joint statement wherein the parties agreed that the federal petition was fully exhausted. (ECF No. 68.) On February 2, 2010, Respondent filed an answer to the petition, without points and authorities. (ECF No. 74.)

Page 3

On September 1, 2010, Petitioner filed a memorandum of points and authorities in support of the petition. On July 21, 2011, Respondent filed a memorandum of points and authorities in support of his answer. On January 9, 2012, Petitioner filed a reply to Respondent's memorandum.

II. STATEMENT OF FACTS

The factual summary is taken from the California Supreme Court's summary of the facts in its March 7, 2005, opinion. Pursuant to 28 U.S.C. §§ 2254(d)(2), (e)(1), the state court's summary of facts is presumed correct. Petitioner does not present clear and convincing evidence to the contrary; thus, the Court adopts the factual recitations set forth by the state appellate court. See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009) ("We rely on the state appellate court's decision for our summary of the facts of the crime.").

A. Guilt Phase

At the time the murders took place in 1990, defendant lived at a location known as "the Camp" at 4150 Finney Road in Salida in Stanislaus County. The Camp consisted of a number of houses and trailers. Defendant lived in a trailer with codefendant David Beck, near a house occupied by codefendant Gerald Cruz and his wife. Codefendant Jason LaMarsh lived in another nearby trailer. Cruz was the acknowledged leader of this informal group. Beck was generally in charge of discipline. Everyone in the group pooled their money. Ron Willey was also associated with the group, but did not live at the Camp during the relevant time period. Defendant held a low status within the group. Michelle Evans, who was also involved in the group and was for a time LaMarsh's girlfriend, testified that defendant was a "slave" to the other members of the group, and was given such tasks as cooking, bathing Cruz's children, and undertaking various repairs. Evans, who was charged with the same first degree murder and conspiracy to commit murder charges as defendant, entered into a plea bargain in which she received a one-year sentence in exchange for her trial testimony. According to her testimony, defendant was beaten by Beck, at Cruz's order, for various deficiencies in his work. He was also given the task of guarding the camp late into the night, as well as often spending days doing construction work.

Cruz and Beck bought assault weapons and several camouflage masks and knives. Two weeks before the murders, they purchased a police-style baton.

One of the Camp residents, Franklin Raper, a man in his 50's, was known to be selling drugs from his trailer. The noise and other activities attendant upon drug sale and use, as well as hypodermic needles and other drug paraphernalia left by Mr. Raper's customers, became a concern to Cruz and other Camp residents. Also of concern was Raper's treatment of an elderly man named Jiggs. Raper used Jiggs's electricity to power his trailer, refused to compensate him for it, and threatened to kill Jiggs when the latter threatened to disconnect the former's

Page 4

power. Cruz, according to Evans's testimony, looked out for people in the Camp, and became upset by this behavior. He and others asked Raper to leave the Camp, but Raper initially refused.

Then began a series of confrontations between Raper and Cruz's group. Cruz and others pushed Raper's car across the street and set it on fire. Raper agreed to leave the Camp and had his trailer towed to 5223 Elm Street. But Raper returned soon after and destroyed a newly repaired fence near Cruz's house. Cruz had Raper arrested and taken to jail. Two weeks before the murders, Jason LaMarsh and others in the group got into a physical altercation with Raper at the latter's Elm Street residence, accusing him of stealing one of their guns, until others broke up the fight. Later the same evening, Dennis Colwell, one of the people present at the Elm Street residence during the fight, drove slowly by the Camp and was pursued by Cruz and other Camp residents. They dragged Colwell from the car and beat him, seeking to have him tell them what was going on at the Elm Street residence. Defendant watched as the beating took place.

Michelle Evans's sister, Tanya, had lived at the Elm Street residence, but was evicted around the same time as Raper moved his trailer there. Raper lived in the residence and allowed others to stay there as a kind of "crash pad." The afternoon of the murders, Cruz asked Evans to prepare a diagram of the residence. Later that day, Cruz met with Beck, LaMarsh, Evans, Willey and defendant in LaMarsh's trailer. Cruz announced that the plan was to go over to the Elm Street residence "to do 'em and leave no witnesses." Cruz gave each person a plan of entry and an assignment. Evans's task was to enter the residence as a visitor, to account for all the people at the residence and attempt to move them into the living room, to open up the back window and then leave and wait in the car. LaMarsh was to enter with her. Beck was to come in through the back window. Cruz, Willey and defendant were supposed to come through the front door after Evans had completed her assignment. Cruz told the group that whoever "messed up" in carrying out their assignments would "join" the victims, and he looked directly at defendant when he made the statement.

Cruz then handed out weapons to be used. There were two baseball bats, a Ka-bar knife and an M-9 knife. Cruz took one of the knives, along with a police baton. Defendant was given a baseball bat and also had his own .22-caliber handgun. Before going to the Elm Street residence, defendant and Willey were seen swinging their bats and "dancing around" to hard rock music. Defendant and others put on camouflage masks.

The group then proceeded to the Elm Street residence just after midnight on May 21, 1990, driving over together in a Mercury Zephyr. Raper, Colwell, and two others present at the house at the time, Richard Ritchey and Darlene ("Emmie") Paris, were murdered. Donna Alvarez, who had been sleeping in one of the bedrooms when the attack began, managed to escape to a neighbor's house.

Ritchey ran through the front door and into the street. A neighbor (Earl Creekmore) and Evans testified that Willey and Cruz caught up to Ritchey and beat him. Cruz then slit his throat with his knife. Raper's and Colwell's throats were also slit and they had multiple wounds, including severe skull fractures inflicted by a baseball bat or police baton. In Raper's case, the top of the head was caved in and there were severe lacerations to the brain.

Defendant killed Emmie Paris. The day after the murder he told Evans that Paris began screaming and Cruz ordered him to shut her up. Defendant hit her with a

Page 5

baseball bat several times but did not succeed in silencing her. Cruz then handed him his knife and he stabbed her. When this also failed, defendant grabbed Paris's

...