Young v. Gipson, Case No. 11–cv–04985–JST (PR)

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Citation: 163 F.Supp.3d 647
• Docket Number: Case No. 11–cv–04985–JST (PR)
• Parties: Robert Young, Petitioner, v. Connie Gipson, Warden, et al., Respondents.
• Decision Date: 11 September 2015

163 F.Supp.3d 647

Robert Young, Petitioner,
v.
Connie Gipson, Warden, et al., Respondents.

Case No. 11–cv–04985–JST (PR)

United States District Court, N.D. California.

Signed September 11, 2015

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Wesley Andrew Vanwinkle, Law Offices of Wesley A. Van Winkle, Berkeley, CA, for Petitioner.

Bruce Louis Ortega, California State Attorney General's Office San Francisco, CA, for Respondent.

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ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS

JON S. TIGAR, United States District Judge

Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 by petitioner Robert Young, challenging the validity of a judgment obtained against him in state court. Respondent has filed an answer to the petition, and petitioner has filed a traverse. For the reasons set forth below, the petition is granted in part and denied in part.

I. PROCEDURAL HISTORY

On October 17, 1990, in a capital case trial, an Alameda County Superior Court jury found petitioner guilty of three counts of first degree murder, Cal. Penal Code § 187 (counts 1, 5, and 8), two counts of robbery, id. at § 211 (counts 2 and 7), two counts of attempted murder, id. at §§ 664/187 (counts 3 and 6), and one count of attempted robbery, id. at §§ 664/211 (count 4). The jury found true the enhancement allegations that petitioner personally used a firearm during the commission of each crime, id. at §§ 1203.06, 12022.5, and found true the enhancement allegations attendant to the count 2 robbery and count 3 attempted murder that petitioner inflicted great bodily injury upon his victim, id. at §§ 1203.075, 12022.7. The jury additionally found true the robbery-murder special circumstance allegation charged attendant to the count 1 and count 5 murders, id. at § 190.2(a)(17)(i) (now (a)(17)(A)), and lastly found the multiple-murder special circumstance allegation true as well, id. at § 190.2(a)(3)). Ex. A at 992–99, 1006–15; Ex. B at 3719–26.¹ Petitioner subsequently admitted the truth of a prior-conviction allegation. Ex. A at 1022; Ex. B at 3728–30.

On November 8, 1990, the jury returned its penalty-phase verdict against petitioner, fixing his punishment at death. Ex. A at 1067; Ex. B at 4103–04.

On December 17, 1990, the trial court sentenced petitioner to death on the count 1 and count 5 first degree murder convictions, and sentenced him to life in prison without the possibility of parole on the count 8 first degree murder conviction. With respect to the remaining convictions and enhancements the trial court imposed a 45–year determinate state prison sentence, but ordered that sentence stayed under Cal. Penal Code § 654. Ex. A at 1088–93; Ex. B at 4135–40.

Petitioner's automatic appeal to the California Supreme Court proceeded. Petitioner filed his Appellant's Opening Brief on April 13, 2001, Ex. C, the People of the State of California filed their Respondent's Brief on October 1, 2001, Ex. D, and petitioner subsequently filed his Appellant's Reply Brief, Ex. E. Petitioner made 11 attacks on the guilt-phase judgment against him in his briefing, including claims of insufficient evidence, prosecutorial misconduct, and instructional error. Exs. C, E. Petitioner also made numerous attacks on the death judgment against him. Id.

On April 23, 2003, petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court, again making allegations attacking the guilt-phase judgment against him, including claims of ineffective assistance of counsel and some of the claims he had raised on direct appeal. Ex. F. In his state habeas application petitioner

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also attacked the penalty-phase judgment against him, and argued therein that he had established a prima facie case that he was mentally retarded. Id. (citing Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding the execution of a mentally retarded person violates the Eighth Amendment)).

On December 30, 2003, with respect to petitioner's state habeas application, the People of the State of California filed an Informal Response to Petition for Writ of Habeas Corpus in the California Supreme Court. Ex. G.

On January 31, 2005, the California Supreme Court issued its opinion in petitioner's direct appeal, rejecting all of his assignments of error and affirming both the guilt and death judgments against him. Ex. H; People v. Young, 34 Cal.4th 1149, 24 Cal.Rptr.3d 112, 105 P.3d 487 (2005).

On February 2, 2005, in the California Supreme Court, petitioner filed a Reply to Informal Response to Petition for Writ of Habeas Corpus. Ex. I.

On May 6, 2005, petitioner filed a Petition for Writ of Certiorari in the United States Supreme Court, seeking discretionary review of the California Supreme Court's decision on direct appeal. Ex. J. On October 3, 2005, the United States Supreme Court denied certiorari. Young v. California, 546 U.S. 833, 126 S.Ct. 57, 163 L.Ed.2d 86 (2005).

On October 11, 2006, the California Supreme Court issued the following order in petitioner's state habeas proceeding:

Each request for judicial notice is denied. (People v. Rowland (1992) 4 Cal.4th 238, 268 fn. 6 [14 Cal.Rptr.2d 377, 841 P.2d 897].) The Director of the Department of Corrections and Rehabilitation is ordered to show cause in the Alameda County Superior Court, when the matter is placed on calendar, why petitioner's death sentence should not be vacated and petitioner sentenced to life imprisonment without the possibility of parole on the ground that he is mentally retarded within the meaning of Atkins v. Virginia [,] [ ] 536 U.S. 304 [122 S.Ct. 2242], as alleged in Claim XIII of the petition for writ of habeas corpus filed April 23, 2003. (See In re Hawthorne (2005) 35 Cal.4th 40 [24 Cal.Rptr.3d 189, 105 P.3d 552].) The return is to be filed on or before November 9, 2006. All other claims set forth in the petition for writ of habeas corpus are denied. Each claim is denied on the merits. Except insofar as they allege ineffective assistance of counsel as a substantive basis for relief, the following claims are additionally barred to the extent they were raised and rejected on appeal (In re Harris (1993) 5 Cal.4th 813, 825, 829–841 [21 Cal.Rptr.2d 373, 855 P.2d 391] ; In re Waltreus (1965) 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001] ): claims II, IV, V, and XXI. Kennard, J., is of the opinion an order to show cause should be issued as to claims XV and XIX.

Ex. K.

On October 8, 2010, the Alameda County Superior Court issued an order granting petitioner habeas corpus relief vacating his death sentence. The court found that petitioner had sustained his burden of proof that he is mentally retarded. The court then resentenced petitioner to life imprisonment without the possibility of parole on counts 1 and 5. Ex. L.

On October 7, 2011, petitioner filed a Petition for Writ of Habeas Corpus in this Court, raising 20 claims of federal constitutional error. Docket No. 1. These attacks on his convictions are ones he raised on direct appeal in state court, on state habeas, or both.

II. STATEMENT OF FACTS

The following background facts describing the crime and evidence presented at

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trial are from the opinion of the California Supreme Court on direct appeal:²

1. The Attempted Murder and Robbery of Manzine Miller and the Murder of Terry Rivers

In the early morning hours of January 30, 1989, Manzine Miller and Terry Rivers were selling rock cocaine in front of Miller's house on East 24th Street in Oakland (Miller's house). Around 2:30 a.m., Miller observed a black-over-green Ford turn onto Highland Avenue from East 24th Street and park. Moments later, defendant and another man walked from Highland Avenue and approached Miller. Defendant told Miller he wanted to purchase $50 worth of rock cocaine. Miller indicated to defendant that he could sell him the drug, but would have to get it from his supplier. Defendant told his companion to watch the street and then followed Miller along a pathway through a nearby vacant lot known as the “swamp,” towards Miller's supplier. As they walked, defendant pulled out a gun, told Miller to get on his knees, and robbed him of the rock cocaine he had in his pocket. As Miller begged defendant not to shoot him, defendant shot him above his right hip. Miller survived the gunshot wound and watched defendant walk back towards his (Miller's) house. Miller heard three gunshots shortly after defendant left. When the police arrived at Miller's house, they found the body of Terry Rivers lying across the front entryway.

2. Murder of Glen Frazier and Attempted Robbery of Melva Fite

Sometime after 2:00 a.m. on January 30, 1989, on 89th Avenue in Oakland, defendant exited a vehicle and approached Melva Fite and Glen Frazier as they talked with Frazier's cousin, Ricky Smith. Defendant suddenly began shooting at Smith. Smith ran to a house, and Fite and Frazier ran up 89th Avenue. Defendant followed Fite and Frazier in his vehicle. Defendant's cousin, Patrick Jackson, was riding in the front passenger seat. When defendant caught up with Fite and Frazier near the intersection of 90th Avenue and Cherry Street, he exited the vehicle and demanded their money. Frazier told defendant they did not have anything. Defendant then accused Frazier of previously robbing him. Frazier replied that he did not know defendant. As he and Fite crouched down on their knees, they begged defendant not to shoot. Defendant told Fite to run, and moments later, Fite heard two shots fired. She saw Frazier slump to the ground. Frazier died later that morning from a gunshot wound to his lower back.

3. Murder of Sylvester Davis; Attempted Murder of Luther Thomas; Robbery of Gerald Livingston

In the early morning hours of February 19, 1989, defendant crashed through the living room window of a “crack house” on 74th Avenue (74th Avenue house). Luther Thomas, Veronica Robinson, Joseph Lee Batiste, Gerald Livingston, Veronica

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