Vieira v. Ylst

Filing 127

ORDER re Petitioner's Pro Se Submissions for a Hearing on Conflict of Interest Issues signed by Chief Judge Anthony W. Ishii on 5/25/2012. The Clerk of the Court is directed to return the three pro se submissions to Vieira. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD J. VIEIRA

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Petitioner,
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vs.
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KEVIN CHAPPELL, as Acting Warden of San )
Quentin State Prison,*
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Respondent.
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_______________________________________ )

Case No. 1:05-cv-01492 AWI
DEATH PENALTY CASE
ORDER RE: PETITIONER’S PRO SE
SUBMISSIONS FOR A HEARING ON
CONFLICT OF INTEREST ISSUES

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This matter is before the Court on the April 27, May 11, and May 21, 2012 pro se

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submissions presented for filing by Petitioner Richard J. Vieira (“Vieira”). The Court rejects filing

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of all three documents.

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I.

Procedural History in the Present Case and Related State Habeas Proceedings

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The underlying crime involves the murder of four individuals by Vieira and five co-

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defendants. One co-defendant accepted a plea for a reduced sentence and testified against the others.

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Vieira’s case was severed from the remaining four co-defendants and tried first in Stanislaus County.

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On September 6, 1991 the jury found Vieira guilty of four counts of first degree murder and one

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count of conspiracy. Additionally, the jury found true the multiple murder special circumstance

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making Vieira eligible for the death penalty. Penalty proceedings culminated on September 13, 1991

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with a verdict of death on the conspiracy count and three of the four first degree murder counts.

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Vieira’s motions for new trial and to modify the verdict were denied on March 30, 1992 and his

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death sentence was imposed. With a reduction of the death penalty to 25 years to life for the

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conspiracy count, his conviction and sentence were affirmed by the California Supreme Court on
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*Kevin Chappell is substituted as Respondent
pursuant to Federal Rule of Civil Procedure 25(d).

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March 7, 2005, as modified on May 26, 2005. People v. Vieira, 35 Cal. 4th 264 (2005).

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conviction and sentence became final on October 31, 2005 with the denial of Vieira’s petition for

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writ of certiorari by the United States Supreme Court.

The

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Vieira commenced the present action on November 22, 2005 with an application for stay of

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execution and a request for appointment on counsel. After two attorneys were appointed to represent

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him on March 15, 2006, Vieira filed his complete petition for writ of habeas corpus on October 26,

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2006, which is the operative petition in this action (“Petition”). On October 31, 2006 he filed his

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first state petition for habeas corpus in the California Supreme Court under case number S147688.

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With the pendency of the state petition, abeyance of federal proceedings was ordered on January 4,

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2007. Vieira’s attorneys of record thereafter filed quarterly status reports of the state proceedings,

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culminating with notice on June 30, 2009 that the California Supreme Court had denied his state

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petition on June 24, 2009.

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Briefing on the federal pleadings was complete on January 9, 2012 with the filing of Vieira’s

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reply brief in support of the Petition. On January 23, 2012 Vieira filed a motion for an evidentiary

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hearing and expansion of the record as to nine claims (Claims 1, 2, 3, 4, 7, 8, 9, 44, and 45) of the

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Petition. The opposition brief was filed on March 15, 2012, and Vieira’s reply brief was filed on

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April 19, 2012. The matter currently stands submitted.

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During the aforementioned briefing process, on February 21, 2012, the Court appointed John

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T. Philipsborn as independent counsel to address specified matters pertinent to Vieira’s

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representation. As noted in the order terminating appointment of independent counsel filed

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concurrently herewith, the confidential May 3, 2012 report prepared and filed under seal by Mr.

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Philipsborn fulfilled the Court’s objectives in making the appointment.

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The final matter bearing on the Court’s review of Vieira’s pro se submissions is the pendency

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of a successive petition before the California Supreme Court. The docket entry of the state high

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court shows that Vieira filed a pro se petition on May 16, 2011 under case number S193257, entitled

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“Petition for writ of habeas corpus filed by condemned inmate in propria persona.” A second docket

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entry on June 7, 2011 indicates Vieira filed additional evidence in support of his pro se petition.

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There are no other docket entries for case number S193257 and no further information is available

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about this pending state matter.

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II.

Related Civil Rights Complaint

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On January 9, 2012, the same day briefing on the federal habeas pleadings was complete,

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Vieira commenced a Civil Rights action pursuant to 42 U.S.C. §§ 1983 and 1985, naming Governor

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Brown, former Governor Schwarzenegger, current and former justices of the California Supreme

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Court, the California Appellate Project, all certified death penalty approved defense attorneys, the

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State of California together with all counties, cities, and other municipalities contained therein, and

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various federal district court and appellate court judicial officers. 1:12-cv-0044 AWI MJS. The

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complaint in that action reflects Vieira’s claim that he is incarcerated under an illegal sentence, that

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the named defendants have engaged in a criminal conspiracy to create an illegal state capital

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conviction review process, that the delay of years in resolving claims before the California Supreme

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Court has prejudiced his ability to challenge his capital conviction, and that the combination of these

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violations has effected a suspension of the writ of habeas corpus in violation of his Due Process

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Rights under the Fourteenth Amendment to the United States Constitution. On May 22, 2012, the

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Magistrate Judge filed Findings and Recommendations dismissing this action without prejudice.

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III.

The Pro Se Submissions

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Each of the recent pro se submission is summarized.

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A.

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Verbatim, the caption of this submission is reads: “Court’s ORDER to Review Petitioner’s

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Conflict of Interest .” It references the fact that the Court previously appointed independent counsel,

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presents various arguments, and attaches privileged correspondence. The Court has not read the

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privileged correspondence and does not intend to do so.

The April 27, 2012 Submission

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B.

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The May submission is a motion identical to the motion of Paul C. Bolin (“Bolin”) in Bolin

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v. Chappell, Case no. 1:99-cv-5279 LJO, which Bolin submitted for filing, and which was filed on

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April 16, 2012. In his motion, Vieira, like Bolin, asserts that the policies, procedures, rules, and

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rulings of the California Supreme Court are unconstitutional because they deprive him of meaningful

The May 11, 2012 Submission

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review of his claims. Like Bolin, Vieira argues the existence of a conflict of interest with his

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attorneys because of their apparent acquiescence in the alleged illegal conduct of the California State

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Court system. Attached to the motions of both Vieira’s and Bolin’s motions is a memorandum of

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points and authorities of a co-inmate, Theodore Shove (“Shove”), filed in the Central District of

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California, Case No. CV 12-2194 R. The Shove motion also alleges illegalities and suspension of

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the writ due to state procedures. The Central District Court dismissed Shove’s action for lack of

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exhaustion of state remedies on April 6, 2012. The order states that Shove’s direct appeal in his

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capital case is still pending before the California Supreme Court.

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C.

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The May 21, 2012 Submission

The most recent submission is a letter requesting the Court to rule on Vieira’s prior

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submissions in the present case as well as in his civil rights action (1:12-cv-00044)

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IV.

Discussion

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Local Rule 191, subdivision (d) of the Eastern District of California Local Rules, under the

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heading “Attorney Representation,” provides in part: “Having appointed counsel to represent the

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petitioner, the Court generally will not consider pro se documents about the presentation of his or

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her case. However, the Court generally will consider pro se motions concerning petitioner’s

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representation by appointed counsel.”

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With respect to the April 27, 2012 submission, Vieira’s complaints and concerns presented

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in that document were referred to Mr. Philipsborn, as independent counsel. The Court finds that the

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views presented in this April submission are superseded by the information relayed in Mr.

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Philipsborn’s May 3, 2012 confidential report.

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Regarding the May 11, 2012 submission, although Vieira’s pleading is framed in terms of

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a conflict of interest with his appointed attorneys, his complaint is not about lack of attorney

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communication or mishandling of the merits of his substantive claims. Rather he bases his claim

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of an alleged conflict of interest on the fact that his appointed attorneys feel bound by the policies,

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procedures, rules, and rulings of the California Supreme Court, and further that they have declined

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to bring claims challenging the California State Court system before this Court.

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This is not a bona fide conflict of interest. Rather, it is an attempt to present substantive

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claims to the Court which Vieira’s attorneys have not raised. Moreover, there is nothing the least

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bit ineffectual about the attorneys’ declination to raise in this Court Vieira’s challenges to the

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California State Court system. First, and foremost, Vieira’s case is fully briefed and ripe for decision

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on the merits by this Court. Second, even if this Court believed the California State Court system

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were flawed, it is without authority to provide a remedy. Finally, the claim Vieira wishes to pursue

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is not cognizable on federal habeas corpus.

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With respect to Vieira’s May 21, 2012 submission, in light of the Court’s finding that the

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asserted conflict of interest with his attorneys does not require any remedial action and that the

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substantive relief he seeks is not cognizable, no further action is required. Regarding the civil rights

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action, the Court will enter an order on the Findings and Recommendations of the Magistrate Judge

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within the time prescribed.

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V.

Conclusion

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The three submissions addressed herein shall not be filed. No remedy is available for the

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claims Vieira advocates, and the claims are not cognizable. The ends of justice will be better served

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if the Court focuses on the substantive claims currently under consideration. Vieira’s counsel are

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directed to provide him with a copy of this order. The Clerk of the Court is directed to return the

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three submissions to Vieira.

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IT IS SO ORDERED.
DATE:

May 25, 2012
/s/ Anthony W. Ishii
Anthony W. Ishii
United States District Judge

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