Weaver v. Chappell
| Decision Date | 19 September 2021 |
| Docket Number | 1:02-cv-05583-AWI-SAB |
| Court | U.S. District Court — Eastern District of California |
| Parties | WARD FRANCIS WEAVER, JR., Petitioner, v. KEVIN CHAPPELL, Warden of San Quentin State Prison, Respondent. [1] |
(1) DENYING CLAIMS 3-7, 10-34; (2) DENYING PETITIONER'S MOTION FOR RECORD EXPANSION AND EVIDENTIARY HEARING (3) DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND (4) ISSUING CERTIFICATE OF APPEALABILITY FOR CLAIMS 3, 7, 8 AND 9
CLERK TO VACATE ANY AND ALL SCHEDULED DATES AND SUBSTITUTE RON BROOMFIELD AS RESPONDENT WARDEN AND ENTER JUDGMENT
Petitioner Ward Francis Weaver, Jr. (hereinafter “Petitioner”) 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 in this action by attorneys Karen Schryver and Timothy Foley, each appointed pursuant to the Criminal Justice Act, 18 U.S.C. § 3599(a) (hereinafter “CJA”).
Respondent Kevin Chappell is named as Warden of San Quentin State Prison. He is represented in this action by Amanda Cary of the Office of the California Attorney General.
Before the Court for a decision are (1) the amended petition for writ of habeas corpus filed in this proceeding on September 1, 2009 (hereinafter the “Amended Petition”) (ECF No. 107), (2) Amended Petition Claims 3-7 and 10-34 including subclaims (hereinafter “Claim” or “Claims”), and (3) Petitioner's motion for expansion of the record and evidentiary hearing relating to certain of the Claims (see ECF No. 216).
Having previously denied Claims 1, 2 (ECF No. 162) and Claims 8 and 9 (ECF No. 209), and upon careful review of the parties' filings and the relevant case law and for the reasons set out below, the undersigned finds that (1) Claims 3-7, 10-30, and 32-34 shall be denied with prejudice and Claim 31 shall be denied without prejudice as moot, (2) Petitioner's motion for record expansion and evidentiary hearing shall be denied (3) the Amended Petition shall be denied, and (4) a Certificate of Appealability shall issue only for Claims 3, 7, 8, and 9.
On August 10, 1982, the Kern County Sheriff's Department filed a Felony Criminal Complaint in the Kern County Municipal Court, charging Petitioner with the 1981 murders of Robert Radford and Barbara Levoy, the kidnapping of Levoy, and unlawful sexual intercourse, sodomy, and oral copulation by force upon Levoy. (CT 131-132.)
On August 19, 1982, attorney David Huffman was appointed to represent Petitioner. (August 19, 1982 RT at 3.)
On September 22, 1982, Petitioner was charged by Information in the Kern County Superior Court with the murders of Robert Radford and Barbara Levoy with special circumstances of murder during the commission of kidnap, rape, sodomy, and multiple murder, and the kidnap of Levoy. [2] (CT 203-205.)
On June 8, 1983, Donnalee Mendez, soon to be David Huffman's wife Donnalee Mendez Huffman, was appointed to represent Petitioner as co-counsel (hereinafter “Counsel” refers to either or both Mr. and Mrs. Huffman, “Lead Counsel” refers to Mr. Huffman, and “Second Counsel” refers to Mrs. Huffman). (CT 242.)
During the arraignment hearing, on October 27, 1982, Counsel raised a doubt as to Petitioner's competence to stand trial. Counsel pointed to reports by jailers and/or prisoners that Petitioner was acting abnormally and hearing voices, and to Petitioner's appearance. (September 29, 1982 RT at 2-3; CT 206.) The arraignment court agreed with Counsel, and with the concurrence of the parties appointed two experts to evaluate Petitioner pursuant to Penal Code section 1368 (competence to stand trial) and section 1026 (sanity). (CT 207-208). The parties submitted the matter of trial competence on the experts' reports. (CT 209.) The arraignment court reviewed the reports and found that Petitioner to be “presently sane” and “sane for purposes of standing trial, “and proceedings were reinstated. (Id.) Thereupon, Petitioner entered a plea of not guilty to all Counts and denied all allegations. (Id.) Subsequently, Petitioner additionally plead not guilty by reason of insanity (hereinafter “NGI”) to all Counts. (See April 13, 1984 RT at 4-5; CT 639, 673, 917-20, 934, 982-89.)
Petitioner's trial began on September 26, 1984. (CT 1159.) The trial court denied pretrial motions to exclude Petitioner's taped confession and admissions to law enforcement. (CT 1258-1259.)
On December 19, 1984, the jury found Petitioner guilty of two Counts of murder and one Count of kidnapping with special circumstances of murder during the commission of kidnap and multiple murder. (CT 1355-1357, 1482-1490.)
The sanity phase began on January 14, 1985. (CT 1497-1498.) On February 28, 1985, following proceedings during which Lead Counsel largely was absent due to alleged health problems, and following Petitioner's waiver of the presence of Lead Counsel, the jury deliberated 42 minutes and found Petitioner sane at the time of the crimes. (CT 1577-1578, 1627-1629.)
On March 5, 1985, the penalty phase began. (CT 1630-1631.) On March 6, 1985, Petitioner testified for fifteen minutes and Second Counsel presented argument in mitigation. (RT 6976-82, 7027-7039; CT 1632-1633.) On March 7, 1985, after less than one full day of deliberations, the jury returned a death verdict. (RT 7064-65; CT 1636-1637, 1708-1709.)
On April 4, 1985, the trial court entered judgment of death. (RT 7104-7111; CT 1759-1763.) [3]
The California Supreme Court affirmed Petitioner's conviction on direct appeal on August 20, 2001. (Lod. Doc. No. 4, People v. Weaver, 26 Cal.4th 876 (2001), California Supreme Court Number S004665.) That court denied his petition for rehearing on October 24, 2001. (Lod. Doc. No. 6.) Petitioner filed a petition for writ of certiorari in the United States Supreme Court on January 17, 2002, which was denied on May 13, 2002. (Lod. Doc. Nos. 27, 29.)
Petitioner, through appellate counsel, filed a petition for writ of habeas corpus in the California Supreme Court on September 28, 1998, seeking to set aside the judgments of conviction and sentence of death. (Lod. Doc. No. 7, In re Ward Francis Weaver, Jr., California Supreme Court Number S073709.) On November 14, 2001, the California Supreme Court denied the petition on the merits and also denied some claims as procedurally barred. (Lod. Doc. No. 8.)
On May 17, 2002, Petitioner commenced this proceeding under 28 U.S.C. § 2254 by filing a combined request for appointment of counsel and temporary stay of execution. (ECF Nos. 1, 2.) On May 30, 2002, Petitioner filed a separate request to proceed in forma pauperis. (ECF No. 3.) The Court granted requests for appointment of counsel and in forma pauperis status and denied as moot the stay of execution, on May 31, 2002. (ECF No. 4.)
On May 5, 2003, Petitioner filed in this proceeding a petition for writ of habeas corpus pursuant to 28 U.S.C § 2254. (ECF No. 32.)
Petitioner filed a second petition for writ of habeas corpus in the California Supreme Court on May 6, 2003, again seeking to set aside the judgments of conviction and sentence of death. (Lod. Doc. No. 23, In re Ward Francis Weaver, Jr., California Supreme Court Number S115638.)
On March 16, 2004, this Court held the federal proceeding in abeyance pending the conclusion of state court exhaustion proceedings. (ECF No. 56.)
On August 26, 2009, the California Supreme Court denied the second petition on the merits and also denied some claims as procedurally barred. (Lod. Doc. No. 24.)
On September 1, 2009, Petitioner filed the operative Amended Petition in these proceedings. (ECF No. 107.)
Respondent filed his answer on March 30, 2010, admitting the jurisdictional allegations, asserting procedural defenses, and denying that Petitioner is entitled to federal habeas relief on Claims 1 through 34. (ECF No. 116.)
On June 2, 2010, the Court found all the Claims in the Amended Petition to be exhausted (except for a subclaim of Claim 7 as to which the Warden waived exhaustion); and found the Amended Petition timely filed. (ECF No. 121.)
On March 24, 2014, the Court denied on the merits Claim 1 (alleging deprivation of trial counsel due to impairment and incompetence), and Claim 2 (alleging deprivation of counsel and a fair trial due to counsel's conflicts of interest). (ECF No. 162.)
On March 31, 2016, the Court denied on the merits Claim 8 (alleging ineffective assistance of counsel at the sanity phase), and Claim 9 (alleging ineffective assistance of counsel at the penalty phase). (ECF No. 209.)
On November 10, 2016, Petitioner filed his brief in support of Claims 3-7 and 10-34. (ECF No. 210.)
On May 12, 2017, Respondent filed his brief in opposition to Claims 3-4 and 10-34. (ECF No. 211.)
On September 15, 2017, Petitioner filed his brief and a supporting exhibit in reply to Respondent's opposition brief. (ECF Nos. 214 & 215, respectively.)
On December 13, 2017, Petitioner moved for: (i) evidentiary hearing on Claims 3, 4, 6, 7, 11 and certain procedural default allegations relating to Claims 11, 12 and 18, and (ii) expansion of the record with additional documentation relating to Claims 3, 4, 6, 7 and 11. (ECF Nos. 216, 217.) Respondent filed his opposition to the motion on February 13, 2018. (ECF No. 218.) Petitioner filed his reply to the opposition on April 13, 2018. (ECF No. 219.)
This factual summary is taken from the California Supreme Court's summary of the facts in its August 20, 2001 opinion. People v. Weaver, 26 Cal.4th 876 (2001). Pursuant to 28 U.S.C. §§ 2254(d)(2), (e)(1), the state supreme court's summary of facts is presumed correct. See Kirkpatrick v. Chappell, 950 F.3d 1118 1131 (9th Cir. 2020), cert. denied, 141 S.Ct. 561 (2020) (...
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