McPeters v. Brown, et al

Filing 265

ORDER Reinstituting Preparation for Evidentiary Hearing, signed by District Judge Lawrence J. O'Neill on 11/18/2013.(60)Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RONALD AVERY McPETERS,

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Petitioner,
v.

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KEVIN CHAPPELL, Warden of California
State Prison at San Quentin,
Respondent.

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) Case No.: 1:95-cv-05108 LJO
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) ORDER REINSTITUTING PREPARATION FOR
) EVIDENTIARY HEARING
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I.

Introduction

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The Court conducted a hearing with counsel for the parties on April 2013 to explore resolution

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of this case in light of the mental state of Petitioner Ronald Avery McPeters (“McPeters”). Jean R.

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Sternberg and the Habeas Corpus Resource Center, by Gary D. Sowards, represented McPeters at the

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hearing. Respondent Kevin Chappell, Warden of California State Prison at San Quentin (the

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“Warden”) was represented by Supervising Deputy Attorneys General Ward A. Campbell and Michael

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A. Canzoneri. A representative from the Fresno County District Attorney’s Office was encouraged to

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attend, but did not. At the culmination of the hearing, McPeters was directed to report back in a status

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report of any progress made. While the Court has been made aware that the exchange of documents

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and some discussions have occurred, it is apparent that the parties cannot agree on a process for

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resolving this case. In light of the Court’s objective to accomplish that very result, preparation for the

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previously ordered evidentiary hearing will commence in accordance with the directives in this order.

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II.

Case Overview

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McPeters was sentenced to death for the August 6, 1984 robbery and murder of Linda Pasnick

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at a Der Wienerschnitzel restaurant in Fresno, California. His conviction and sentence were affirmed

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by the California Supreme Court on July 13, 1992. People v. McPeters, 2 Cal. 4th 1148 (1992). On

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March 22, 1994, the state court also denied his March 2, 1992 petition for collateral review. McPeters

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initiated the present action on February 13, 1995 with an application for a stay of the execution of his

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sentence and appointment of counsel. His federal petition was filed on April 22, 1996. Following

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litigation concerning the procedural default of several claims and merits briefing by the parties,

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McPeters filed a motion for an evidentiary hearing, record expansion, and discovery on June 7, 1999.

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On October 8, 2004, the Court entered a memorandum order granting this motion, in part, on October

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8, 2004, as to Claims 4, 6, 15A, 16, 21, and 22. A number of claims in the petition previously have

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been dismissed as procedurally defaulted or denied on the merits.

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1.

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On November 8, 1996, the Court denied a portion of Claim 13 on the merits
(when ruling on procedural default).

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On January 8, 1998 the Court dismissed Claims 3, 14, and 20 for procedural

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default after undertaking an analysis of cause, prejudice, and a fundamental

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miscarriage of justice pursuant to Coleman v. Thompson, 501 U.S. 722, 750

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(1991), and Schlup v. Delo, 513 U.S. 298, 315 (1995).

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3.

On October 8, 2004 the Court denied on the merits Claims 1, 7, 9, 10, 12, 15B,

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17, 19, 23, 24, 25, 26, and 32 when considering McPeters’ June 7, 1999 motion

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for further evidentiary development.

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4.

On December 23, 2004 the Court denied on the merits Claims 2, 5, and the

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remaining portion of Claim 13 after evaluating the viability of the robbery-

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murder special circumstance in light of persuasive evidence supporting a

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finding that an attempted robbery occurred but a completed robbery did not.

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Besides the six claims for which an evidentiary hearing was granted on October 8, 2004,

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Claims 11 and 35 were reserved pending the outcome the evidentiary hearing. The merits of record-

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based Claims 8, 18, 27, 28, 29, 30, 31, 33, and 34 have not been addressed.

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III.

Claims Subject to Further Evidentiary Development

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All six of the claims for which an evidentiary hearing was granted involve McPeters’ mental

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state. Claims 4, 6, 15, and 16 allege ineffective assistance of counsel for the failure of McPeters’ trial

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attorney to present an insanity defense (Claim 4), to present a defense that McPeters was legally

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unconscious due to mental illness, drug-induced psychosis, or both, and lacked the mens rea necessary

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for to crimes for which he was convicted (Claim 6), and failure to present mitigating evidence and

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conduct adequate cross examination at the penalty phase (Claims 15 and 16). Claim 21 raises a

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substantive claim of mental incompetence throughout the entire proceedings.

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McPeters was deprived of the benefit of adequate mental health assistance due to the ineffective

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assistance of counsel alleged in Claims 4, 6, and 15. It is the Court’s decision to bifurcate this action

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between guilt and penalty phase claims, with litigation of claims pertaining to the guilt phase to be

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addressed first, that is Claims 4, 6, and 21.

Claim 22 alleges

McPeters’ Incompetence to be Tried (Claim 21)

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A.

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McPeters alleges he was prosecuted while mentally incompetent, unable to understand the

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proceedings, and unable to communicate effectively and assist his trial counsel. See Dusky v. United

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States, 362 U.S. 402 (1960).

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evaluated for competence to be tried between four and five months prior to the commencement of trial

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and that his anti-psychotic medication had been terminated. In the October 8, 2004 order, the Court

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found that based solely on the evidence offered with the motion, a finding of retrospective

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incompetence was likely.

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substance of the proffered evidence could be sustained after being tested by cross examination and

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opposing evidence anticipated to be presented by the Warden.

Documents appended to McPeters’ motion indicated that he was

Further evidentiary development was granted to explore whether the

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Accordingly, the Warden is directed to come forward with a statement of any objections to the

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evidence discussed in the October 8, 2004 Order regarding Claim 21 and to provide an offer of proof
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as to evidence he would present to refute that evidence. The Warden also shall provide a summary of

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his position that the proffered evidence does not establish McPeters’ incompetence to be tried.

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B.

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Claims 4 and 6 challenge the competence of McPeters’ trial attorney for his failure to raise

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insanity and unconsciousness defenses as well as his failure to present evidence showing McPeters’

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lack of mens rea for robbery and murder. In the October 8, 2004 Order the Court identified the issues

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to be resolved at the anticipated evidentiary hearing:

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Defenses Not Raised at Guilt Phase Proceedings

1.

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into the Fresno County Jail;
2.

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McPeters’ mental and physical condition after his arrest and prior to his booking

Whether McPeters was placed in a safety cell contemporaneous with his
booking into the Fresno County Jail and the reasons therefor;

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Whether McPeters anti-psychotic medication was prescribed for and

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administered to McPeters contemporaneous with his booking into the Fresno

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County Jail;

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4.

Whether McPeters’ attorney abandoned his guilt phase defense strategy to

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present mental health experts because he was unable to establish a foundation of

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drug involvement;

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5.

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Whether the results of drug tests conducted on McPeters’ blood were reliable
indicators of his intoxication and/ or mental state at the time of the offense;

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Whether McPeters’ attorney fully appreciated the import of the toxicological

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test results, erroneously accepted the prosecutor’s inaccurate characterization

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that the blood vial which tested positive for PCP in an appreciable quantity was

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contaminated, and incompetently failed to investigate the matter himself; and

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7.

Whether the declarations of McPeters’ mental health experts, including the turn-

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around testimony of Dr. Joel Fort, are based on reliable, supportable facts,

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including McPeters’ alleged long-term history of drug and alcohol abuse.

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As to the first six of these issues, the Warden is directed to file a statement of any objections to

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the evidence McPeters proffered, provide an offer of proof as to evidence he would present to refute
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that evidence, and a summary of his position that the proffered evidence does not establish ineffective

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assistance of counsel as alleged in Claims 4 and 6. The Court is particularly focused on whether the

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Warden contends McPeters was competent to select a denial defense during trial proceedings and

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whether he can substantiate his argument that the treating emergency room physician found no

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nystagmus when he treated McPeters shortly after his arrest. McPeters is directed to file a statement

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addressing the seventh issue, since reliable evidence capable of corroboration which would

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substantiate his long-term mental illness and substance abuse was not presented with his motion.

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IV.

Standard of Review

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When preparing their responses, the parties should bear in mind that this case is not subject to

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the review provisions of the Anti-terrorism and Effective Death Penalty Act of April 24, 1996

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(“AEDPA”) because McPeters’ federal petition was filed prior to the effective date of that act.

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Woodford v. Garceau, 538 U.S. 202, 207 (2003).

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V.

Order

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In compliance with this order, both parties are directed to file their respective responses within

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60 days of this order. After the Court has reviewed the responses, further briefing may or may not be

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ordered, or the Court may call for a rapid status conference. No case management or budgeting

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activity will be necessary on the part of McPeters’ attorneys, as the budget authorized in 2008 and

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amended in 2009 remains viable.

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The 60 days will not be extended. Last minute emergencies should be anticipated now. This
case is inexcusably old.

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IT IS SO ORDERED.

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Dated: November 18 2013
/s/ Lawrence J. O’Neill
Lawrence J. O’Neill
United States District Judge

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