Stankewitz v. Brown, et al

Filing 607

ORDER denying 603 Motion for Reconsideration signed by Chief Judge Anthony W. Ishii on 12/10/2009. (Lundstrom, T)

1 2 3 4 5 6 7 8 9 D O U G L A S RAY STANKEWITZ, 10 11 13 14 15 16
A n order granting the petition for writ of habeas corpus filed by Petitioner vs. o f San Quentin State Prison, P e t it i o n e r , ) ) ) ) ) ) ) ) ) ) ) C a s e No. 1:91-cv-616-AWI D E A T H PENALTY CASE O r d e r Regarding Respondent's M o tio n for Reconsideration of O r d e r Granting Petition and V a c a tin g December 14, 2009 H e a r in g U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF CALIFORNIA

12 R O B E R T WONG, Acting Warden
R e s p o n d e n t.

17 D o u g la s Ray Stankewitz ("Stankewitz") was issued September 22, 2009, and 18 ju d g m e n t entered concurrently. On October 1, 2009, Respondent Robert Wong 19 (" th e Warden") filed a request for stay of the judgment and a motion for 20 r e c o n s id e r a tio n , setting a hearing on the motion for Monday, December 14, 2009, 21 a t 2:30 p.m. An order granting the Warden's request for a stay of the judgment 22 p e n d in g resolution of the motion for reconsideration was issued October 15, 23 2 0 0 9 . Stankewitz filed an opposition to the motion for reconsideration November 24 3 0 , 2009. 25 26
T h e Warden presents two objections to the order granting the petition:

1 1. 2 3 4 5 6

T h is Court's conclusion granting the petition fails to recognize the extent to w h ic h the factual allegations relied on by the Ninth Circuit were decimated o n remand and misconstrues the extent to which the Ninth Circuit's p r e ju d ic e assessment dictated the conclusion in light of those changed f a c ts . T h e Warden asserts the Ninth Circuit's opinion was rendered under the

7 a ss u m p tio n that Stankewitz's allegations were true in finding that trial counsel 8 w a s ineffective in failing to adequately investigate and present mitigation, and 9 th a t it became clear on remand Stankewitz's allegations included falsehoods, 10 m is r e p r e s e n ta tio n s, and exaggerations which completely undermined the claim.1 11 In light of these changes, the Warden asserts the Ninth Circuit's conclusion that a 12 " m o r e complete presentation" could have made a difference in Stankewitz's 13 s e n te n c e , and that "there was a reasonable probability that the jury would not 14 h a v e sentenced Stankewitz to death" with the presentation of this evidence, has 15 b e e n completed undermined. 16 17 18 19 20 21 22 23 24 25 26
The Warden notes the following questionable allegations: (1) trial counsel's d e c la r a tio n stating he had not obtained or reviewed records from Stankewitz's first tr ia l and appeal (which has been found to be false); (2) assertions of sexual abuse at N a p a State Hospital (which have no credible support and appear based on the a c c o u n t of a troubled individual with no first-hand knowledge); (3) background in f o r m a tio n regarding troubled members of Stankewitz's family and claims of abuse b y , and drug and alcohol use at the hands of, those family members (which is u n d e r m in e d by the fact that Stankewitz lived with his family for only a few months b e tw e e n age six and the time of Theresa's murder); (4) habeas experts' assertions th a t Stankewitz is brain-damaged (which are contradicted by extensive psychiatric a n d psychological examinations finding Stankewitz did not suffer from a mental d is e a s e ); (5) implication of abuse or neglect in the assertion that Stankewitz was ta k e n to the emergency room three times before his first birthday (where records r e v e a l two of the visits were for common maladies); (6) claim that Stankewitz w itn e s s e d the murder of one of his father's fellow gang members (where there is no e v id e n c e of the time, place, or victim of such a murder); (7) assertion that Stankewitz w a s "partying" with his brother William in the days prior to Theresa's murder (w h e r e William's interview indicates he had not seen Stankewitz for more than a y e a r ); and (8) the lengthy social history (which was revealed to be merely a conduit fo r Stankewitz's untested statements).
O R e c o n s id S tn k

1

2

1

T h e Warden contends that Stankewitz's emotional outbursts and acts of

2 v io le n ce over the course of his life, as chronicled in the order granting the 3 p e titio n ,2 do not establish prejudice but simply confirm the numerous diagnoses 4 th a t Stankewitz was a sociopath. The Warden asserts there is no reasonable 5 p r o b a b ility that presentation of such evidence would have impacted the sentence 6 im p o s e d by jurors in both of Stankewitz's trials, and that it is highly improbable 7 th a t the failure to present this evidence was prejudicial. 8
S ta n k e w itz responds that the Warden's motion rehashes arguments made

9 in his brief on remand, which remain unavailing. Stankewitz urges the Court to 10 m a k e additional findings of prejudice due to trial counsel's failure to present 11 e v id e n c e of his sub-average intellectual functioning, his drug use around the time 12 o f the crime, and further evidence of his family history. 13
Accepting the Warden's argument that Goodwin's review of the

14 in v e s tig a tio n files from Stankewitz's first trial would satisfy the performance 15 p ro n g of Strickland, and so undermine the Ninth Circuit's conclusion that trial 16 c o u n s e l was ineffective for failing to investigate, it does not undermine the Ninth 17 C ir c u it's conclusion of prejudice: that a "more complete presentation, including 18 e v e n a fraction of the details Stankewitz now alleges," could have made a 19 d iffe r e n c e in the sentence. Stankewitz v. Woodford, 365 F.3d 706, 724-725 (9th Cir. 20 2 0 0 4 ) . 21 22 2 . 23 24 25 26
The Warden requests clarification of the order granting the petition, where c e r ta in allegations are acknowledged to have questionable support, and other a lle g a tio n s that incorporate the same facts are not specifically mentioned. The C o u r t's recitation of Stankewitz's allegations does not infer acceptance of those a lle g a tio n s as true, and references to facts with questionable support extend to all a lle g a tio n s which incorporate those facts.
O R e c o n s id S tn k

T h e Court's conclusion fails to address the significance of Schriro v.

2

3

1 2 3

L a n d r ig r a n , 550 U.S. 465 (2007) with respect to Stankewitz's opposition of a p e n a lty phase defense. T h e Warden observes that in rejecting Stankewitz `s petition in 2000, this

4 C o u r t noted that Stankewitz was opposed to presenting any penalty defense, and 5 p a r tic u la r ly to any defense which involved the use of family members as 6 w itn e s s e s or the use of expert witnesses. On remand, the Ninth Circuit 7 r e s p o n d e d that Stankewitz's purported objections to mitigating evidence appears 8 n o t to have been `informed and knowing' since there was no evidence trial 9 c o u n s e l conducted an adequate investigation. The Warden contends, as he did in 10 h is brief on remand, that it is now known trial counsel did obtain and review all 11 th e evidence from the first trial and appeal, and given that Stankewitz received a 12 d e a th sentence after his counsel at the first trial conducted a full investigation, his 13 o b je c tio n was informed and knowing. The Warden argues that following the 14 N in t h Circuit's remand, a United States Supreme Court case cast substantial 15 d o u b t on whether there is an informed and knowing requirement for a 16 d e fe n d a n t's decision not to present mitigation. Schriro v. Landrigan, 550 U.S. 465, 17 4 7 8 -7 9 (2007). The Warden contends that absent an informed and knowing 18 r e q u ir e m e n t, trial counsel's acceptance of Stankewitz's desire not to present 19 fu r th e r mitigation was clearly not prejudicial. The Warden urges this Court to 20 a d d r es s the issue and the impact of the Landrigan decision. 21
S ta n k e w itz responds the Ninth Circuit already has rejected, as "belied by

22 th e record," the argument that trial counsel was justified in not presenting 23 m itig a tio n due to Stankewitz's alleged opposition. Further, Stankewitz notes this 24 C o u r t found the uncontested facts were sufficient to establish prejudice from trial 25 c o u n s e l's failure to present more than a minimal case in mitigation. Stankewitz 26 a s s e rts the Warden has not disputed most of the basic facts regarding trial
O R e c o n s id S tn k

4

1 c o u n s e l's performance,3 and has instead repeated the unsuccessful argument that 2 trial counsel's failure to present available mitigation is excused by Stankewitz' s 3 a lle g e d objections. As noted by the Ninth Circuit and shown by the record, trial 4 c o u n s e l did introduce penalty phase witnesses, including a member of 5 S ta n k e w itz 's family (by marriage), and a probation officer who testified briefly 6 a b o u t Stankewitz's abuse and early institutionalizations. Stankewitz argues that 7 w h e re trial counsel has not refrained from presenting mitigation evidence, 8 d isr e g a r d in g any objections by the defendant, the effect of an alleged refusal to 9 c o o p e r a te does not need to be analyzed. Hamilton v. Ayers, 583 F.3d 1100, 1119 10 (9 th Cir. 2009). Stankewitz notes that while this Court found trial counsel's 11 c o n d u c t unreasonable, the Warden's continuing arguments on this issue have not 12 b e e n explicitly rejected, and asserts the Court should do so now to clarify the 13 r e co r d on appeal. 14
L a n d r ig a n is distinguishable from Stankewitz's case. Mr. Landrigan stated

15 to the trial court that he did not want mitigation presented, and when the trial 16 ju d g e questioned counsel about available mitigation, Mr. Landrigan interrupted 17 w ith contradictory and damaging information. 550 U.S. at 469-470. As noted in 18 th e 2000 order denying the petition, Stankewitz made appropriate and 19 u n d e r s ta n d a b le objections to various events during the trial, indicating he could, 20 a n d did, make his objections known. See Doc. 448 at p. 18-19. But despite his 21 a lle g e d objection to the presentation of mitigation evidence, Stankewitz did not 22 24 25 26
3

23 n o t consult with counsel from the first trial, did not hire an investigator or expert to

Stankewitz asserts the following facts are not contested: (1) trial counsel did

p r e p a r e for trial, and did not interview any of Stankewitz's family or any expert w itn e s s e s for possible use at trial; (2) trial counsel was practicing out of his house at th e time of Stankewitz's trial and generally did not use paralegals, investigators, or p r o fe s s io n a l consultants in capital cases; and (3) regarding a capital case tried the y e a r before Stankewitz's trial, trial counsel admitted he never thought about hiring e x p e r ts , paralegals or investigators, failed to even obtain secretarial assistance, and d id everything he felt needed to be done in capital cases by himself.
O R e c o n s id S tn k

5

1 in te r r u p t or try to sabotage trial counsel's presentation. 2 3
T h e Warden's motion for reconsideration is DENIED. The hearing set for

4 D e ce m b e r 14, 2009, at 2:30 p.m. is vacated. The stay of judgment entered October 5 1 5 , 2009, is vacated. The writ of habeas corpus shall issue directing the State of 6 C a lifo rn ia to vacate and set aside the death sentence in People v. Douglas Ray 7 S tan kew itz , Fresno County Superior Court Case No. 227015-5, unless within 90 8 d a y s of the date of this order, the State of California initiates proceedings to retry 9 S ta n k ew itz 's sentence, or alternatively, re-sentences him to life without the 10 p o s sib ility of parole. 11 12 13 14 15 IT IS SO ORDERED. 16 D a t e d : 17 18 19 20 21 22 23 24 25 26
O R e c o n s id S tn k

December 10, 2009

b64h1h

/s/ Anthony W. Ishii C H IE F UNITED STATES DISTRICT JUDGE

6