Adcox v. Woodford, et al

Filing 151

ORDER Regarding Petitioner's Motion for Stay and Abeyance of Second Amended Petition 140 and Amendment of March 31, 2009 Order on Exhaustion 139 , signed by Judge Oliver W. Wanger on 7/1/10: Petitioner's Motion for Stay and Abeyance is D ENIED; Adcox's brief of the merits of the remaining claims in his petition is due 120 days from the date of this order. The Warden's opposing brief is due 120 days after Adcox's brief is filed, and Adcox's reply brief, if any, is due 90 days after the filing of the Warden's opposition brief. (Hellings, J)

(DP) Adcox v. Woodford, et al

Doc. 151

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 P e titio n e r Keith Edward Adcox ("Adcox"), a state prisoner facing capital p u n is h m e n t, filed in federal court seeking habeas relief December 1, 1992. Counsel was appointed to represent Adcox in his federal proceedings September 2 , 1993. Adcox filed his initial federal petition for writ of habeas corpus April 3, 1 9 9 5 , and filed an amended petition September 7, 1995. Seven claims, and p o r tio n s of four other claims, were denied on the merits June 11, 1998. Fifteen c la im s were determined to be completely unexhausted, and six claims were fo u n d to be partially unexhausted. The proceedings were subsequently held in a b e y a n c e pending the exhaustion of state remedies. Adcox filed his state e x h a u s tio n petition October 8, 1998. W h ile the matter was pending state exhaustion, lead counsel J. Jeffries K E IT H EDWARD ADCOX, ) ) P e titio n e r , ) ) vs. ) ) V IN C E N T CULLEN, Acting Warden ) o f San Quentin State Prison, ) ) R e s p o n d e n t. ) ) C a s e No. 1:92-cv-5830-OWW D E A T H PENALTY CASE O r d e r Regarding Petitioner's Motion fo r Stay and Abeyance of Second A m e n d e d Petition (Doc. 140) and A m e n d m e n t of March 31, 2009 Order o n Exhaustion (Doc. 139) U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF CALIFORNIA

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G o o d w in moved to withdraw, and the Federal Defender for the Eastern District o f California, Capital Habeas Unit, was appointed. The California Supreme C o u r t summarily denied Adcox's state exhaustion petition, both on the merits a n d as untimely, January 3, 2007. Upon resumption of the federal proceedings, W e n d y Peoples was substituted as co-counsel in place of Eric Fogderude. Adcox file d his second amended petition for writ of habeas corpus February 28, 2008. Respondent Vincent Cullen ("the Warden") filed an answer January 26, 2009. T h e parties filed a Joint Statement on Exhaustion February 25, 2009, a g re e in g that six claims or subclaims were unexhausted. (Claims V(A)(4)-(6); VI; X V I; XX(A)(2)(a), (b), (c)(iii), (d)(i)-(iii), (g); XLIII; and XLIV.) The parties did not a g re e about the exhaustion status of another ten claims or subclaims. An order o n exhaustion was issued March 31, 2009, finding the ten claims or subclaims w h e r e the parties did not agree about the exhaustion status to be exhausted. Adcox filed his second motion for stay and abeyance May 29, 2009, the Warden file d an opposition to stay and abeyance June 26, 2009, and Adcox filed a reply Ju ly 10, 2009. W h ile Adcox's second motion for stay and abeyance was pending, he filed a fourth state habeas petition (case number S180912) with the California Supreme C o u r t on March 12, 2010, presenting Claims V(A)(4), (5) and (6), XVI, XX(A)(2)(a), (b ), (c), (d), and (g); XX(A)(3), and XLIII; as well as three claims which were not in c lu d e d in the second amended federal petition - cumulative error from the p r o s e c u to r 's misconduct, cumulative error from all asserted claims, and a juror m is c o n d u c t claim asserting the misuse of extraneous information. Claims VI and X L IV , which the parties had agreed were unexhausted, were not presented to the s ta te court in Adcox's fourth state habeas petition. The California Supreme Court d ir e c te d that an informal response to the fourth state petition, which is

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a n tic ip a te d to be filed by December, 2010. Concurrent with filing his fourth state h a b e a s petition, Adcox filed in this court a notice of supplemental authority a s s e r tin g a Ninth Circuit case issued March 5, 2010, expressly held that a m e n d m e n ts to a federal habeas petition filed prior to enactment of the AEDPA is not subject to the one-year statute of limitations, even when it is amended after th e AEDPA's effective date. See Smith v. Mahoney, 596 F.3d 1133, 1149 (9th Cir. 2 0 1 0 ).

C la im XLIII - Unconstitutional Delay A d c o x asserts the factual predicate for this claim only came into existence w h e n the California Supreme Court failed to timely dispose of his direct appeal a n d habeas petitions and denied relief. Adcox asserts the nearly quarter century o f delay in his proceedings have resulted in the loss of potentially exculpatory a n d /o r mitigating evidence, violated due process, and that his execution now w o u ld be cruel and unusual punishment. Adcox alleges he has been prejudiced b y the deaths of numerous witnesses who have died without his being able to p r e s e r v e their testimony, and that documentary evidence has been lost or d e s tr o y e d . T h e Warden contends Adcox could have raised this claim at numerous p o in ts in the past: when his direct appeal was final in 1989; prior to the denials of h is first or second state habeas petitions in 1992; before the exhaustion order on h is federal petition in 1998; or during the pendency of his third state habeas p e titio n from 1998 to 2007.1 The Warden asserts Adcox has not shown good

Adcox was sentenced to death on July 11, 1983. His direct appeal was final o n denial of his certiorari petition, less than seven years later on March 19, 1990. His firs t two state habeas petitions were denied July 15, 1992, a total of nine years after

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c a u s e for failing to exhaust this claim previously, that the claim is not supported b y existing federal law and so would be barred under Teague v. Lane, 489 U.S. 288 (1 9 8 9 ), and that no loss of evidence which would have a harmful or injurious e ffe c t has been shown. T h e Warden denies the proceedings to review Adcox's death sentence h a v e been unreasonably or excessively delayed, alleging the delay due to the a u to m a tic appeal was reasonable, and that all other proceedings were voluntarily in s titu te d by Adcox. The Warden contends, in light of Adcox's failure to exhaust th is claim, that there is insufficient information on which to say whether certain w itn e s s e s have died during the pendency of the proceedings, whether those witnesses (or others who have died) could have provided material information or te s tim o n y , or whether records have been lost. C o n c lu s io n T h e California Supreme Court's review of Adcox's direct appeal and first r o u n d of state habeas lasted nine years. Adcox took six years to file his federal p e titio n and state exhaustion petition. The California Supreme Court's denial of th e state exhaustion petition occurred about eight years later. Adcox took over a y e a r to file his amended federal petition. L e n g th y incarceration on death row during the pendency of capital a p p e a ls does not violate the Constitution's prohibition against cruel and unusual p u n is h m e n t. McKenzie v. Day, 57 F.3d 1493, 1494 (9th Cir. 1995) (en banc); see also S m ith v. Mahoney, supra, 596 F.3d at 1153 (rejecting same claim under Teague).

he was sentenced. His first filing in federal court was December 1, 1992, his initial fe d e r a l petition was filed April 3, 1995, and amended five months later on S e p te m b e r 7, 1995, twelve years after sentencing. His third state (exhaustion) p e titio n was filed October 8, 1998, over fifteen years after sentencing, and was d e n ie d January 9, 2007, twenty-three and a half years after sentencing.

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A lth o u g h Adcox raises this claim in his initial federal proceedings, unlike M c K e n z ie 's claim which was raised in a subsequent petition just prior to his scheduled execution, the reasons for rejecting the claim remain the same. "A d e fe n d a n t must not be penalized for pursuing his constitutional rights, but he a ls o should not be able to benefit from the ultimately unsuccessful pursuit of th o s e rights." McKenzie v. Day, 57 F.3d 1461, 1466 (9th Cir. 1995) (panel opinion d e n y in g stay of execution). Claim XLIII is denied on the merits.

C la im s as to which some legal grounds are unexhausted T w o of the claims agreed by the parties to contain some unexhausted legal g r o u n d s were previously denied on the merits. See June 11, 1998 Memorandum a n d Order Regarding Dismissal, Exhaustion and Abeyance (Doc. No. 75). The p o r tio n of Claim III asserting an Equal Protection violation from the denial of a c h a n g e of venue, and Claim XXV, regarding the penalty instructions on age, a g re e d to be unexhausted "to the extent it relied on constitutional provisions o th e r than the Eighth Amendment," were previously denied on the merits. Adcox states Claims III and XXV were retained in his second amended petition to a v o id possible confusion and to preserve possible appellate review. Abeyance is n o t required for these claims.

A m e n d m e n t of March 31, 2009 Exhaustion Order C la im V(A)(6) - Failure to Disclose Second Side of Tape of Tillery Interview A d c o x argues Tillery's earliest statements about the shooting are pivotal s in c e her testimony helped establish that the killing was intentional and that A d c o x was the shooter. Adcox asserts the interview reveals Tillery's confusion a b o u t who said what, that it would have supported the defense theory that there

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w a s never a plan to murder the victim, and that it could have effectively im p e a c h e d her testimony, calling into question the prosecution's theory about h o w the shooting occurred. Adcox contends the suppressed evidence also was r e le v a n t to sentencing, as it would likely have produced lingering doubt about h is involvement in the murder, and shown the favorable treatment given to T ille r y by the prosecution. T h e Warden asserts Adcox was on notice that there was more to the in te r v ie w than was reflected on the transcript, since a report of the same in te r v ie w reveals significantly more content than is reflected on the transcript, a n d the transcript ends in the middle of a sentence, suggesting there was more to th e interview. The Warden observes the complete tape was obtained through in fo rm a l discovery, but that Adcox provides no reason why informal discovery w a s not, or could not have been, pursued earlier. Also, the Warden suggests it w o u ld appear Adcox will be permitted to rely on the second side of the tape to s u p p o r t his claim that Tillery was intimidated into testifying as she did. A d c o x replies he had no reason to suspect that the interview with Tillery h a d not been fully transcribed and provided to trial counsel. Adcox contests the W a r d e n 's description of the transcript as ending mid-sentence, asserting it ends m id -p a g e with Tillery stating "I want to go home. (whispered) (further in a u d ib le )." This follows an announcement by the DA Investigator that he was " d o n e " with the questioning, and appears to be nothing more than quiet c o n v e r s a tio n occurring before Tillery was escorted from the interrogation room. Adcox contends the belief this was the end of the interview is reinforced by the d o c u m e n t stamp which appears only on that page, indicating it was the c o n c lu s io n of the document. Adcox asserts reasonable persons would not have r e a liz e d the transcript was incomplete.

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T h e Warden contends this claim is without merit because the allegedly n e w information is not material. Adcox's argument, based on the second side of th e tape, that Tillery said "they" shot Orozco, does not show that Love was the a c tu a l shooter nor exculpate Adcox, and is not significantly different from other s ta te m e n ts Tillery made. The Warden observes Adcox testified he told Tillery th a t he had shot the victim, as well as described how Love shot him. The W a r d e n asserts that impeachment of Tillery on this point would have been i m m a t e r i a l. A d c o x asserts the tape recording was obtained through state court d is c o v e r y , which was not authorized until March 2004, and after learning th r o u g h informal discovery that the tape recording was in the possession of the T u o lu m n e County Sheriff's department. Adcox claims it was a complete surprise to learn an entire side of the tape had not previously been transcribed. The W a r d e n contends the second side of the taped interview does not contain s ta te m e n ts which significantly differ from Tillery's other statements or her te s tim o n y , and contains no threats which could have influenced Tillery.

C o n c lu s io n T h e submitted briefs of the parties regarding abeyance indicated their a g re e m e n t that this claim was unexhausted, and that conclusion was adopted in th e March 31, 2009 exhaustion order. Subsequent review of the record reveals th a t conclusion is erroneous. This claim of prosecutorial misconduct was p r e s e n te d in Claim V of Adcox's amended federal petition filed September 7, 1 9 9 5 . The tape recording and transcript are admissible under Vasquez v. Hillery, 4 7 4 U.S. 254 (1986), as additional evidence in support of the petition. Claim V (A )(6 ) is exhausted.

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C la im XVI - Ineffective Assistance of Appellate Counsel C la im XVI, regarding ineffective assistance of appellate counsel, was a g re e d to be partially unexhausted with respect to Adcox's "rights to Due P r o c e s s , Equal Protection and to present an affirmative appeal, insofar as it was r e la te d to Claim XX, ineffective assistance of counsel, except for allegations r e la tin g to subclaim XX(A)(2)(c)(ii) (Guidice's failure to adequately cross-examine p r o s e c u tio n witness Jerry Chisum). The Warden contends Adcox does not a tte m p t to justify his failure to exhaust this claim or to show that it has merit. Thus, the Warden asserts Adcox should not be permitted a further stay to e x h a u s t this claim.

C o n c lu s io n T h e submitted briefs of the parties regarding abeyance indicated their a g re e m e n t that certain legal bases for this claim were unexhausted. Review of th e record in these proceedings reveal that conclusion is erroneous. This claim of in e ffe c tiv e assistance of appellate counsel was presented to the state court in A d c o x 's third (exhaustion) petition, filed October 8, 1998, as Claim XIV, and in c lu d e d violations under the rights of Due Process, Equal Protection, and to p r e s e n t an affirmative appeal. Claim XVI is exhausted.

T h e Parties' Arguments Regarding Stay and Abeyance 2 A d c o x argues Rhines v. Weber, 544 U.S. 269 (2005), supports a stay of fe d e r a l habeas proceedings on a petition containing unexhausted claims where th e petitioner has good cause for his failure to exhaust, his unexhausted claims These arguments were submitted in these proceedings before the Ninth C ir c u it issued Smith v. Mahoney, 596 F.3d 1133 (9th Cir. 2010) (see discussion below).
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a r e potentially meritorious, and there is no indication he has been intentionally d ila to r y . Id. at 278. Adcox asserts he meets each of the requirements from Rhines: firs t, there is good cause for his failure to exhaust because changes in state law h a v e only recently allowed discovery of the facts supporting the unexhausted c la im s ; second, the unexhausted claims have sufficient merit to justify stay and a b e y a n c e ; and third, he has not engaged in intentionally dilatory litigation tactics w h ic h would justify denial of a stay. Adcox concedes it is somewhat unusual for a second round of abeyance to be ordered by a district court, but contends it has h a p p e n e d in other capital cases. Adcox further asserts the lack of a stay could r e s u lt in his losing the right to federal review of his unexhausted claims, and is s u in g a stay will serve the legitimate interests of this Court and the state courts. T h e Warden opposes further stay and abeyance, arguing that stay and a b e y a n c e is only available in limited circumstances and should be refused where th e unexhausted claims are plainly meritless. Rhines, 544 U.S. at 277. The W a r d e n asserts the newly-discovered evidence on which Adcox's request for a b e y a n c e is based could have been discovered with reasonable diligence and the p r o ffe r e d new information adds little to the claims. Further, the Warden asserts th e claims based on new facts are barred by the one-year AEDPA statute of lim ita tio n s because they are not based on the "same core of operative facts" as a n y properly-raised claim. See Mayle v. Felix, 545 U.S. 644 (2005). A d c o x replies that Rhines only requires a single meritorious claim to justify a b e y a n c e , so requiring briefing and consideration of why every unexhausted c la im was not raised in the prior proceeding and whether it has potential merit is a n unnecessary expenditure of resources. Adcox argues that if there is ju s tific a tio n for staying the federal proceedings based on a single claim, no g e n u in e purpose is served to determine whether the stay would be justified for

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o th e r claims.

N e w ly Discovered Evidence A d c o x asserts Claims V(A)(4) and (5), alleging prosecutorial misconduct, a r e based on facts that were only recently discovered after obtaining and r e v ie w in g the transcript from co-defendant Howard Love's trial. Adcox claims n e ith e r he, nor his attorneys, had any reason to think the transcript from Love's tr ia l would reveal the basis for a constitutional claim in his case. The transcript w a s not available from prior counsel, the trial court, the appellate court, or the s ta te archive, but was eventually obtained by tracking down the retired court r e p o r te r . S m ith v. Mahoney, 596 F.3d 1133 (9th Cir. 2010) held the one-year AEDPA s ta tu te of limitations does not apply to post-AEDPA amendments if the petition w a s filed before the effective date of the AEDPA. Id. at 1148. Similarly, Smith fo u n d the relation-back doctrine, applied to habeas petition amendments in M a y le v. Felix, 545 U.S. 644 (2005), does not apply to amendments of petitions that w e re filed before the AEDPA was enacted. The Ninth Circuit observed that the p e titio n at issue in Mayle was filed after the AEDPA's effective date and c o n c lu d e d that the Supreme Court's interpretation of the relation-back doctrine th e r e was resolved in the context of the AEDPA's intents and constraints. Id. at 1 1 4 9 -1 1 5 0 . A d c o x argued that Rhines v. Weber, supra, 544 U.S. 269, provides the s ta n d a r d for granting abeyance of his second amended federal habeas petition. However, under the holding of Smith v. Mahoney, like the relation-back doctrine in Mayle, the standard in Rhines is not applicable to this case. The petition at is s u e in Rhines also was subject to the AEDPA, as was the petition in Mayle, so the

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s ta n d a r d from Rhines does not apply to Adcox's pre-AEDPA petition. P r io r to the enactment of the AEDPA, McCleskey v. Zant, 499 U.S. 467 (1991) s e t the standard regarding the showing a petitioner must make to avoid abuse of th e writ. Once the government met their burden of pleading a petitioner's abuse o f the writ (by showing the claims now raised were not in a previous habeas p e titio n ), the burden shifts to the petitioner to show cause for the failure to raise a n issue and actual prejudice resulting from the errors complained of. Id. at 494 (a p p ly in g the standard from procedural default cases to instances of abuse of the w r it). Cause "requires the petitioner to show that `some objective factor external to the defense impeded counsel's efforts' to raise the claim." Id. at 493 (citing M u r r a y v. Carrier, 477 U.S. 478, 488 (1986)). Objective factors which constitute c a u s e include governmental interference, the reasonable unavailability of a fa c tu a l or legal basis for the claim, or constitutional ineffective assistance of c o u n s e l. McCleskey, 499 U.S. at 494. If a petitioner cannot establish cause, the c o u r t can still excuse failure to raise the claims in an earlier petition if the p e titio n e r can show that dismissal of the claim will result in a fundamental m is c a r r ia g e of justice ­ the conviction of an innocent person. McClesky, 499 U.S. a t 494. T h e doctrines of procedural default and abuse of the writ are both c o n c e rn e d with the significant costs of federal habeas corpus review, especially r e g a r d in g the finality of state convictions. McCleskey, 499 U.S. at 490-491. When a habeas petitioner obtains a new trial, the "erosion of memory" and "dispersion o f witnesses" prejudice the government and diminish the chances of a reliable c r im in a l adjudication. Id. at 491. Federal habeas review of state convictions fr u s tr a te "the States' sovereign power to punish offenders and their good-faith a tte m p ts to honor constitutional rights." Id. Habeas corpus has further costs: it

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b u r d e n s scarce federal judicial resources; it threatens the capacity of the system to resolve primary disputes; and it may give litigants incentives to withhold c la im s for manipulative purposes or disincentives to present claims when e v id e n c e is fresh. Id. at 491-492. " If collateral review of a conviction extends the ordeal of trial for both s o c ie ty and the accused, the ordeal worsens during subsequent collateral p r o c e e d in g s ." McCleskey, 499 U.S. at 492 (citing Engle v. Isaac, 456 U.S. 107, 1261 2 7 (1982)). If the review of a conviction in the first round of federal habeas o ffe n d s federalism and comity and stretches resources, examination of new c la im s raised in a second or subsequent petition increases the offense to fe d e r a lis m and comity and spreads resources thinner still. Id. The doctrines of p r o c e d u r a l default and abuse of the writ impose on petitioners a burden of r e a s o n a b le compliance with procedures designed to discourage baseless claims a n d to keep the system open for valid claims. Both abuse of the writ and p r o c e d u r a l default doctrines are designed to vindicate the State's interest in the fin a lity of its criminal judgments and to lessen the injury to a State from r e e x a m in a tio n of a state conviction on a ground that the State did not have the o p p o r tu n ity to address the claim at a prior, appropriate time. Id. at 493.

C la im V(A)(4) - Prosecutorial Misconduct: Examination of Criminalist Chisum In the opening statement at Adcox's trial, the prosecutor maintained the v ic tim Orozco had been shot from a distance of 30 feet, but on direct examination C h is u m 's opinion was that the fatal shot was fired from a distance of about eight fe e t. The prosecutor used Chisum's testimony to vigorously argue that Adcox's a c c o u n t of the events was false. Months later, at Howard Love's trial, the p r o s e c u to r elicited testimony from Chisum asserting the evidence permitted two

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th e o r ie s about where the shooter was positioned, but stating the evidence fa v o r e d the account consistent with Adcox's testimony. B y failing to elicit Chisum `s opinion that the crime occurred in a manner c o n s is te n t with Adcox's testimony, Adcox asserts the prosecutor failed to correct m is le a d in g testimony, which along with the use of inconsistent theories at the tw o trials, violated Adcox's rights. Adcox contends that in light of the jury's s tr u g g le over whether to credit his testimony, the prosecutor's reliance on m is le a d in g testimony that contradicted his account of the crime had a substantial a n d injurious effect on the verdicts at both stages of the trial. A d c o x 's counsel assert the transcript of the testimony of criminalist Jerry C h is u m from Love's trial was not available from the Court of Appeal in February 2 0 0 7 . The Warden contends the Court of Appeal did have the transcript during L o v e 's appeal in 1984-85, and that a copy of the transcript has been in the p o s s e s s io n of the Attorney General's Office since 1984. The Warden asserts r e a s o n a b le diligence required Adcox to request a copy from the Attorney General if the transcript was not available from the Court of Appeal. Regardless, the W a r d e n argues that Chisum's testimony at Love's trial is inconsequential to the a s s e r te d claim, and that Chisum's testimony from Adcox's preliminary hearing a lr e a d y provided support for the asserted claim. The Warden contends this c la im lacks substance because it only shows a good faith uncertainty as to the e x a c t place from which the fatal shot was fired, and regardless of whether the s h o t was fired from eight feet away or from 15 to 20 feet away, either place is in c o n s is te n t with Adcox's testimony. Further, the Warden asserts it is likely A d c o x will be permitted to present Chisum's testimony from Love's trial in s u p p o r t of his claim asserting ineffective assistance of counsel with respect to the h a n d lin g of Chisum's testimony.

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A d c o x replies that Chisum's testimony about the distance between the s h o o te r and the victim was extremely important, because if the jury credited it, A d c o x 's account of the crime was rendered implausible and the jury's finding on A d c o x 's credibility was critical to his defense. Adcox asserts he cannot be faulted fo r failing to earlier secure the Love transcript, as he had no reason to suspect C h is u m would have retreated from the opinion expressed at his trial. Further, A d c o x contends that state procedures require the existence of triggering facts b e fo r e an investigation may be conducted, so counsel for Adcox on his state a p p e a ls were under no duty to obtain the Love transcript. T h e Warden argues this claim is without merit because Chisum was q u e s tio n e d by both the prosecution and defense on the exact point about which A d c o x complains. Chisum testified he changed his opinion regarding the d is ta n c e from which the fatal shot was fired based on his examination of the v ic tim 's hat and test shots fired with Adcox's gun and ammunition. Further, the W a r d e n denies that Chisum's testimony at Love's trial was in any way in c o n s is te n t with his testimony at Adcox's trial, and denies that the prosecutor r e lie d on a different theory regarding the distance at Love's trial. The Warden a s s e r ts the prosecutor's factual theories were controlled by the evidence available a t the time and denies any bad faith or misconduct.

C la im V(A)(5) - Prosecutorial Misconduct: Theory re: the Victim's Wallet A t Adcox's trial, the prosecutor attempted to establish that Adcox was in p o s s e s s io n of the victim's wallet, encouraging the jury to infer from that fact that A d c o x 's account of the crime was fabricated. Adcox alleges the prosecutor s w itc h e d tactics at Love's trial and argued, consistent with Adcox's account, that L o v e was the one who removed the victim's wallet. Adcox asserts this use of

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in c o n s is te n t theories violated his rights, and given the importance to his defense o f the jury's belief in his testimony, the prosecutor's manipulation of the evidence h a d a substantial and injurious influence on the verdicts. T h e Warden asserts this claim lacks substance, as the prosecutor did not p u r s u e inconsistent theories about who had the victim's wallet after the shooting, b u t consistently held to the position that Love took the wallet from the victim b e c a u s e Adcox did not want to touch the body, but that Love gave the wallet to A d c o x , who then removed the money and discarded the wallet. This was consistent with Adcox's testimony that he received the wallet from Love, and is consistent with the evidence about which Adcox now complains. The Warden c o n te n d s the record refutes the factual predicate of this claim and precludes any fin d in g of prejudice, and that Adcox has failed to show good cause for not e x h a u s tin g this claim earlier.

T o avoid dismissal of these claims due to abuse of the writ, Adcox must s h o w that counsel's efforts' to raise the claims were impeded by an objective fa c to r external to the defense: e.g., governmental interference, the reasonable u n a v a ila b ility of a factual or legal basis for the claims, or constitutional ineffective a s s is ta n c e of counsel. If an external impediment cannot be shown, the failure to r a is e the claims in an earlier petition can still be excused if Adcox can show that d is m is s a l of the claims will result in a fundamental miscarriage of justice ­ i.e., a ffir m in g the conviction of an innocent person. A d c o x presented Claims V(A)(4) and (5) for the first time in his amended fe d e r a l petition filed February 28, 2008. The factual predicate for these claims w e re contained in a public court record. Although Adcox asserts the transcript fr o m Love's trial was not available from the Court of Appeal in February 2007, it

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w a s able to be obtained from the court reporter, and the Warden contends the C a lifo r n ia Attorney General has possessed a copy of the transcript since 1984. A d c o x has failed to show his efforts to raise these claims were impeded by a n objective factor external to the defense. Adcox's arguments that he had no r e a s o n to suspect Chisum would have retreated from the opinion he expressed at A d c o x 's trial, and that state procedures require the existence of triggering facts b e fo r e an investigation may be conducted, so his state appellate counsel were u n d e r no duty to obtain the Love trial transcript, indicate his counsel was not in e ffe c tiv e for failing to raise these claims. Also, Adcox has failed to show the L o v e trial transcript was unavailable due to governmental interference or some o th e r factor external to the defense. Finally, Adcox has not shown that dismissal o f these claims will result in a fundamental miscarriage of justice ­ i.e., affirming th e conviction of an innocent person.

C o n c lu s io n S in c e the government met their burden of pleading abuse of the writ by a s s e r tin g these claims were not in Adcox's previous habeas petition, the burden s h ifte d to Adcox to show cause and actual prejudice. Adcox has failed to show c a u s e , or some objective factor external to the defense which impeded counsel's e ffo r ts ' to raise these claims. Claims V(A)(4) and (5) are dismissed under abuse o f the writ.

N e w Ineffective Assistance of Counsel Claims A d c o x presented these claims for the first time in his 2008 amended federal p e titio n . The parties agree these claims have not been presented to the state c o u r t.

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C la im XX(A) - ineffective assistance of counsel at guilt phase: a. S u b c la im (2)(a) - Guidice's failure to adequately voir dire re: the v ic tim 's church membership; b. c. S u b c la im (2)(b) - Guidice's failure to raise the conflict by Vanover; S u b c la im (2)(c)(iii) - Guidice's failure to elicit on cross examination of M ic h a e l Adcox his statement of that he observed burn marks on L o v e 's face shortly after the shooting; d. S u b c la im (2)(d)(i)-(iii) - Guidice's failure to present evidence: (i) c o n s is te n t with the defense theory from defense investigator Bob H e itm a n regarding the statement by Richard Carr that Love a d m itte d shooting the victim; (ii) from Rhonda Voorheis regarding T ille r y 's reputation as a liar; and (iii) regarding Love's flight after the c r im e ; e. S u b c la im (2)(g) - Guidice's failure to request a poll of the jury r e g a rd in g their potential exposure to newspaper articles about the case; f. S u b c la im (3) - cumulative impact of errors by Lamb and Guidice.

T h e Warden asserts none of these claims are prejudicial. The Warden c o n te n d s , regarding claim (2)(c)(iii), Michael Adcox's statement about burn m a r k s on Love's "cheeks and forehead" are not consistent with having fired a m o d e r n small-bore rifle like the one used to shoot the victim, disputing Adcox's c o n tr a r y allegation in his petition at page 120. The Warden states, regarding c la im (2)(d)(i)-(iii), that the testimony of both the defense investigator and Carr revealed that Love admitted shooting the victim; that Tillery's veracity was a tta c k e d by other means making this evidence cumulative as well as moot since

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A d c o x testified almost everything in Tillery's testimony was true; and that there w a s ample evidence Adcox, Love and Tillery fled after the murder, but the fact L o v e "eluded capture longer" does not show he had more consciousness of guilt th a n Adcox. The Warden asserts, regarding Claim (2)(g), the California Supreme Court o n direct appeal found no reason to believe the jurors had read any of the a lle g e d ly prejudicial articles in violation of the court's admonition People v. A d c o x , 47 Cal.3d 207, 252-253 (1988) (denying Adcox's claim of trial court error fo r failing to sua sponte voir dire the jury regarding statements attributed to the p r o s e c u to r in newspaper articles, finding no abuse of discretion as there was no a ffir m a tiv e evidence that any juror had read any of the articles in question, the d e fe n s e counsel characterized the quotes as "innocuous," and the trial court a d m o n is h e d the jury "not to read any newspapers or listen" to any report c o n n e c te d with the case). The Warden further assserts competent counsel could d e c id e to rely on a mistrial motion based on the news articles instead of r e q u e s tin g that the jurors be questioned, which might emphasize the articles in th e jurors' minds or confirm that Adcox was not harmed. The Warden concludes th a t since the news articles were not incurably prejudicial and there is no reason to believe any of the jurors were exposed to prejudicial material, there is no r e a s o n a b le probability of a different result.

A s above, since the Warden has met their burden of pleading abuse of the w r it, Adcox must show some objective factor external to the defense impeded p r e s e n ta tio n of these claim. If an external impediment cannot be shown, the fa ilu re to raise the claims in an earlier petition can still be excused if Adcox can s h o w that dismissal of the claims will result in a fundamental miscarriage of

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ju s tic e ­ i.e., affirming the conviction of an innocent person. A d c o x presented these claims for the first time in his amended federal p e titio n filed February 28, 2008. The factual predicates underlying these claims w e re contained in the transcript of Adcox's trial, defense counsel's files, or local n e w s p a p e r articles. Adcox has failed to show his efforts to raise these claims w e re impeded by an objective factor external to the defense. Adcox has not s h o w n these claims could not be raised because his appellate counsel was in e ffe c tiv e3 , or due to governmental interference or some other factor external to th e defense. Finally, Adcox has not demonstrated that dismissal of these claims w ill result in affirming the conviction of an innocent person.

C o n c lu s io n S in c e the government met their burden of pleading abuse of the writ by a s s e r tin g these claims were not in Adcox's previous habeas petition, the burden s h ifte d to Adcox to show cause and actual prejudice. Adcox has failed to show c a u s e , or some objective factor external to the defense which impeded the efforts to raise these claims. Subclaims XX(A)(2)(a), (b), (c)(iii), (d)(i)-(iii) and (g), and (A)(3) to the extent it relies on the above allegations in XX(A)(2), are dismissed u n d e r abuse of the writ.

C la im s Not Presented in Fourth State Habeas Petition C la im VI (trial counsel's failure to request a special prosecutor due to the h ir in g of Tillery's counsel Vanover, who had previously negotiated her plea a g re e m e n t, by the DA's office and his subsequent involvement in Adcox's case)

This analysis only applies to facts not included in Claim XVI, which is e x h a u s te d .

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a n d Claim XLIV (lack of California jurisdiction in the Stanislaus National Forest) w e re agreed by the parties to be unexhausted. Adcox did not include these c la im s in his fourth state habeas petition filed with the California Supreme Court M a r c h 12, 2010. In light of the failure to present these claims to the state court, th e y are considered abandoned and are dismissed.

O RD ER: A d c o x 's motion for stay and abeyance is DENIED. The parties' agreement r e g a r d in g the lack of exhaustion of Claims V(A)(6) and XVI, adopted in the M a r c h 31, 2009 Exhaustion Order, is erroneous and those claims are exhausted. Claims V(A)(4) and (5) are dismissed as abusive. Claims XX(A)(2)(a), (b), (c)(iii), (d )(i)-(iii) and (g); XX(A)(3), to the extent it relies on XX(A)(2), are dismissed as a b u s iv e . Claims VI and XLIV are considered abandoned and are dismissed. A d c o x 's brief of the merits of the remaining claims in his petition is due 1 2 0 days from the date of this order. The Warden's opposing brief is due 120 d a y s after Adcox's brief is filed, and Adcox's reply brief, if any, is due 90 days a fte r the filing of the Warden's opposition brief.

IT IS SO ORDERED.

D A TED :

July 1, 2010 /s/ Oliver W. Wanger Senior United States District Judge

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