Bowen v. Hegpeth et al

Filing 30

MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 6/5/12 ORDERING that Bowen is not entitled to relief on either ground raised in his Petition; the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED; the Court declines to issue a Certificate of Appealability. Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. The Clerk of the Court is to enter judgment accordingly. CASE CLOSED. (Becknal, R)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
WAYNE LEE BOWEN,
No. 2:10-cv-01454-JKS
Petitioner,
MEMORANDUM DECISION
vs.
A. HEDPETH, Warden, Salinas Valley
State Prison,
Respondent.

Wayne Lee Bowen, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254. Bowen is currently in the custody of the California Department
of Corrections and Community Supervision, incarcerated at the Salinas Valley State Prison.
Respondent has answered. Bowen has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In February 2008 Bowen was convicted following a jury trial in the Lassen County
Superior Court of Murder in the First-Degree, Cal. Penal Code § 187, with an enhancement for
the personal use of a firearm, Cal. Penal Code § 12022.5(a)(1). The trial court sentenced Bowen
to an indeterminate prison term of twenty-seven years to life. The California Court of Appeal,
Third Appellate District, affirmed Bowen’s conviction and sentence in an unpublished decision,1
and the California Supreme Court denied review on November 10, 2009. Bowen timely filed his
Petition for relief in this Court on June 8, 2010. On the same day, Bowen, appearing pro se, filed
a Motion to Recall the Remittitur/Petition for a Writ of Habeas Corpus in the California Court of

1

People v. Bowen, No. C058580, 2009 WL 2470510 (Cal. Ct. App. Aug. 13, 2009).

Appeal, Third Appellate District,1 which was summarily denied without opinion or citation to
authority on July 15, 2010, and the California Supreme Court denied review on September 22,
2010.
The facts underlying Bowen’s conviction are well known to the parties and are not set
forth herein except to the extent it may be necessary to understand the decision.
II. GROUNDS RAISED/DEFENSES
In his Petition, Bowen raises two grounds: (1) the extensive delay in initiating criminal
proceedings against him violated his right to due process of law; and (2) he received ineffective
assistance of appellate counsel. Respondent does not assert any affirmative defense.2
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” at the time the state court renders its decision or “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”3 The Supreme Court has explained that “clearly established Federal law” in
§ 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the

1

Bowen’s filing was initially rejected as an improper attempt to file both the Motion to
Recall the Remittitur and Petition for a Writ of habeas Corpus in a single document. Bowen refiled the document solely as a Motion to Recall the Remittitur.
2

See Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 5(b) (2011)

3

28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also Lockyer
v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
2

time of the relevant state-court decision.”4 The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts.5 Thus, where holdings of the Supreme Court
regarding the issue presented on habeas review are lacking, “it cannot be said that the state court
‘unreasonabl[y] appli[ed] clearly established Federal law.’”6 When a claim falls under the
“unreasonable application” prong, a state court’s application of Supreme Court precedent must
be “objectively unreasonable,” not just “incorrect or erroneous.”7 The Supreme Court has made
clear that the objectively unreasonable standard is “a substantially higher threshold” than simply
believing that the state-court determination was incorrect.8 “[A]bsent a specific constitutional
violation, federal habeas corpus review of trial error is limited to whether the error ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due process.’”9 In a
federal habeas proceeding, the standard under which this Court must assess the prejudicial
impact of constitutional error in a state court criminal trial is whether the error had a substantial

4

Williams, 529 U.S. at 412 (alteration added).

5

Early v. Packer, 537 U.S. 3, 10 (2002).

6

Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations in original) (citation omitted);
see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam); Kessee v. MendozaPowers, 574 F.3d 675, 678-79 (9th Cir. 2009); Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir.
2009) (explaining the difference between principles enunciated by the Supreme Court that are
directly applicable to the case and principles that must be modified in order to be applied to the
case; the former are clearly established precedent for purposes of § 2254(d)(1), the latter are not).
7

Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations
omitted).
8

Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).

9

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 642, 643 (1974)).
3

and injurious effect or influence in determining the outcome.10 Because state court judgments of
conviction and sentence carry a presumption of finality and legality, the petitioner has the burden
of showing by a preponderance of the evidence that he or she merits habeas relief.11
The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state proceedings. Cf. Felker v.
Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing
AEDPA’s “modified res judicata rule” under § 2244). It preserves authority to issue
the writ in cases where there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with this Court’s precedents. It goes no farther.
Section 2254(d) reflects the view that habeas corpus is a “guard against extreme
malfunctions in the state criminal justice systems,” not a substitute for ordinary error
correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition
for obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.12
In applying this standard, this Court reviews the “last reasoned decision” by the state
court.13 State appellate court decisions that summarily affirm a lower court’s opinion without

10

Fry v. Pliler, 551 U.S. 112, 121 (2007) (adopting the standard set forth in Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)).
11

Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (citations omitted); see Wood v.
Bartholomew, 516 U.S. 1, 8 (1995) (per curiam) (stating that a federal court cannot grant “habeas
relief on the basis of little more than speculation with slight support”).
12

Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).

13

Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297
F.3d 911, 918 (9th Cir. 2002)); cf. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (explaining
“how federal courts in habeas proceedings are to determine whether an unexplained order . . .
rests primarily on federal law,” and noting that federal courts must start by examining “the last
reasoned opinion on the claim . . . . ”).
4

explanation are presumed to have adopted the reasoning of the lower court.14 This Court gives
the presumed decision of the state court the same AEDPA deference that it would give a
reasoned decision of the state court.15
IV. DISCUSSION
Ground 1: Pre-accusation Delay
The victim was apparently killed sometime in July 1988. His body was discovered in
October 1988. Two bullets were recovered from the victim’s skull. Although the bullets were
heavily corroded, which prevented the bullets from being matched to a specific gun, the bullets
were consistent with .38 caliber and could have been fired from either a .357 magnum or a .38caliber revolver. In 1994 and 1996 witnesses told authorities that Bowen had killed the victim.
An information charging Bowen with the murder was not filed until July 27, 2005. Bowen
contends that the nearly ten years between the time the investigation was completed and the filing
of the charges violated his right to due process and prejudiced him.
The factual background and time line are extensively recited in the decision of the
California Court of Appeal.

14

Ylst, 501 U.S. at 802-03 (“Where there has been one reasoned state judgment rejecting
a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest
upon the same ground.”); cf. Richter, 131 S. Ct. at 784 (“As every Court of Appeals to consider
the issue has recognized, determining whether a states court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an opinion from the state
court explaining the state court’s reasoning.”).
15

See Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition
was not entitled to § 2254(d) deference).
5

BACKGROUND
The Burglary Ring
Gregory Young, by his own admission a lifelong criminal and drug addict,
met [Bowen], whom he knew from prison, in Reno in late March or early April 1988.
[Bowen] was with Kevin Behm, whom [Bowen] called “The Kid.” Young also knew
Carla Faddis, who met [Bowen] around this time and became romantically involved
with him.
[Bowen] and Young decided to commit burglaries together and share motel
rooms with Faddis. While [Bowen] and Young committed daytime burglaries,
Faddis would usually stay behind, although she participated as a driver once or twice.
Both she and Young were consuming large amounts of drugs during this time,
methamphetamine for Young and cocaine for Faddis.
Behm was allowed to participate in the burglary ring after [Bowen] vouched
for him, but he turned out to be the weak link. Once, Behm was assigned to watch
the front door during a burglary, but he was high on methamphetamine and Young
found him digging in a toy box rather than watching the door. [Bowen] was only a
little irritated, but he became angrier with Behm over time as his faults accumulated.
According to Young, the group later decided to burglarize a home in an upper
middle class neighborhood in Reno. The burglars were using Faddis’s car, which
was prone to overheating and shutting down. Since the house was on a steep hill,
[Bowen] and Young instructed Behm to park the car up the hill from the house,
facing downhill, so that if the car overheated he could coast to them when they were
ready to leave.
After they took what they wanted from the house and walked outside, Young
looked up the road but did not see Behm where he was supposed to be. [Bowen]
asked where Behm was; Young spotted the car parked the wrong way, facing up the
hill. Young told [Bowen] they could push the car to get it pointed in the right
direction, but [Bowen] said, “No, I’m out of here, I’m done with this. I’m killing that
kid.”
Young and Behm managed to get the car turned around, coast it down to the
house, stop it, and fill it with the stolen items. They then coasted farther down the
hill past [Bowen], who refused to get in. They managed to stop the car at a nursery
at the bottom of the hill, where Young obtained water to cool the radiator enough to
start it. Young then drove back and picked up [Bowen].
Swearing at Behm, who was in the back seat, [Bowen] told him, “You’re an
idiot, your [sic ] dead, man. I’m tired of you, I'm just sick of you.” Later, while the
car was stopped at a traffic light, [Bowen] pointed a gun at Behm’s face, saying,
“You don’t understand, I’ll kill you. I’m going to kill you, man. You keep screwing
up, I’m going to kill you.” After Young told [Bowen] people in the truck next to
them were watching, [Bowen] turned around and said, “Come on, let’s go.” Later,
after they had dropped Behm off and were fencing the stolen goods, [Bowen] told
Young, “The Kid’s dead. I'm done messing with him, he’s dead.”
The Killing
6

In early July, a week to 10 days later, the group was staying at the Continental
Lodge in Reno. [Bowen] told Young he knew the location of a marijuana field and
was going there with Behm to steal from it. Knowing this was false, Young asked,
“Oh, really?” [Bowen] responded, “Yeah, me and The Kid are going to go up, The
Kid ain’t coming back,” and then had Young put a .38-caliber pistol stolen from a
police officer’s house under the driver’s seat of the car.
[Bowen] and Behm left the room between 3:00 p.m. and 5:00 p.m.
According to Faddis, [Bowen] said he was driving Behm to the Reno Greyhound bus
station so Behm could go home to New York.
[Bowen] returned without Behm six to eight hours later, between 11:30 p.m.
and 1:00 a.m. According to Young, [Bowen] then went to the bathroom, took off his
clothes and shoes, and stuffed them in a bag. He then told Young to “[g]et rid of it
good,” and Young left the room to dispose of the clothes.
[Bowen] was taking a shower when Young returned five minutes later. A
nervous and agitated [Bowen] ordered Young to tell Faddis he had dropped Behm off
at the bus station. They checked out the next morning, but [Bowen] first told Faddis
to thoroughly clean the room, which was unusual when they were checking out.
Neither Young nor Faddis ever saw Behm again.
About a week later, Young was sitting on the curb in front of a 7-Eleven,
drinking a Slurpee, when [Bowen] asked, “Do you think I should have buried him,
Bro?” Young asked [Bowen] what he was talking about. [Bowen] asked again
whether he should have buried Behm, telling Young not to worry as Behm did not
suffer. [Bowen] continued: “Look, Greg, it’s like this cup, when you get done
drinking it, what do you do? You throw it away,” a reference to throwing away an
unnecessary criminal partner. He later told Young he had shot Behm in the back of
the head about five miles up a trail to the marijuana field.
A couple of weeks after Faddis saw Behm for the last time, [Bowen] told her
Behm was dead. Laughing, he said he had killed Behm after telling him they were
going to steal the marijuana crop.
The Ring Breaks Up
George Seibert was added to the burglary ring after the Continental Lodge
incident. Seibert testified that [Bowen] had him drive the two of them to Eagle Lake
Road in order to steal from a marijuana field. After parking, they walked next to a
dry creek bed for seven to 10 minutes. Seibert began to feel threatened when
[Bowen], who was walking behind him, asked Seibert to walk on the rocks so as not
to leave any footprints.
Seibert drew his gun and turned around to face [Bowen], telling him to get
in front. [Bowen] did so and was walking in the sand, so Seibert told him to walk on
the rocks so as to avoid leaving footprints. [Bowen] complied and they continued
walking until Seibert stopped to relieve himself. [Bowen] walked off to the left and
said, “Come on up here, I want to show you something.” Siebert asked if there was
any marijuana there, and [Bowen] said no. [Bowen] pointed Seibert to a spot where
there was a “piece of vertebra, looked like it was hooked to a pelvis that was hooked
7

to a pair of blue pants.” Bones were scattered about the site. Seibert said they should
go and [Bowen] agreed.
In late August or early September, Seibert, [Bowen], Faddis, and Young were
in a cottage motel on the north shore of Lake Tahoe. After Young told [Bowen] he
was going to leave, [Bowen] hit Young in the jaw, knocking him out. An angry
[Bowen] said he wanted to kill Young.
When Young awakened, [Bowen] was standing over him and said, “Now I
got to kill you, now you made me got to kill you [sic ].” Young begged for his life
as [Bowen] picked up a .357 Magnum and pointed it at him. Young and Seibert left
three to four days later.
After Young and Seibert left the group, [Bowen] took Faddis to the Eagle
Lake turnoff near Susanville to show her where Behm was. After they pulled over,
got out of the car, and crossed the road, [Bowen] and Faddis stopped by two large
boulders on a “little hill.” [Bowen] told Faddis he had directed Behm to walk over
the hill to get to the crop and then had shot him in the head. He told Faddis she
would be killed if he ever could not trust her.
Young and Seibert were arrested together on September 23, 1988; [Bowen]
and Faddis were arrested five days later. Seibert told the police about being taken to
the alleged marijuana field but did not tell the arresting officers about seeing human
remains there. Young told officers he was afraid for his life as [Bowen] had already
killed a coconspirator.
The Body is Discovered
In October of 1988 two hunters found human bones in an area off of Eagle
Lake Road near Susanville, and a hiker found a human skull in the same area. The
remains were those of Behm, who was fatally shot twice in the head from a distance
of no more than five feet.
Two bullets were recovered from Behm's skull. The heavily corroded bullets
were consistent with being .38-caliber ammunition, and could have been fired from
a .357 Magnum or a .38-caliber revolver. Corrosion prevented the bullets from being
matched to a specific gun.
The Witnesses Come Forth
In 1994 Faddis told Lassen County Sheriff's Investigator Bruce Stelzer about
[Bowen’s] taking her to Eagle Lake Road and admitting to killing Behm. She also
directed Stelzer and other detectives to the place off of Eagle Lake Road where
[Bowen] had taken her. The area was consistent with the general location of the
“meltdown area” where Behm's body was found. Faddis pointed out boulders that
were present when Behm’s body was discovered in 1988. She also provided the
detectives with details of the crime that had not been released to the media.
Faddis was afraid of [Bowen] and testified under a grant of immunity. After
deciding to be truthful to law enforcement about Behm’s murder, Faddis wrote a
letter to Young asking him to come forth.
In 1996 detectives delivered Faddis’s letter to Young while he was in prison,
telling him Faddis needed his help as [Bowen] was getting out of prison and had
8

threatened Faddis’s children. Young agreed to talk and was later given immunity
after telling investigators what he knew.
The first time Seibert told the police about seeing the human remains was in
2007. He had been interviewed four or five times before then but had lied about his
knowledge of the case. Seibert did not say anything earlier because he was afraid of
[Bowen] and thought he could be in trouble for not originally reporting the body.
Sergeant Stelzer found a police report matching Young’s description of the
burglary of the home on the hill. The house was on a steep hill, the location Young
described matched the location in the report, and there was a plant nursery at the
bottom of the hill. The police report was also consistent with Young’s statement
about stealing a gun from a police officer’s house. There was a 7-Eleven at the
location mentioned by Young, and it had a Slurpee machine.
Other Crimes
In 1994 Redding police taped telephone conversations between [Bowen] and
a man named Hamilton. [Bowen] was in custody and sought to hire Hamilton to kill
Troy Gay, the complaining witness against him in another case. He offered Hamilton
$5,000, an amount he would double if the body was not found. [Bowen] was
convicted of solicitation to commit murder as a result.
Hank Shaffer was a friend of [Bowen] in 1992 or 1993. While on a hunting
trip, [Bowen] told Shaffer that Faddis “knew something about him that could put him
away for a long period of time.” [Bowen] told Shaffer that friends help each other
out and asked Shaffer to take Faddis “out of the picture.” Shaffer believed taking
Faddis out of the picture meant killing her.
The Defense
Brian Murphy, who has a prior conviction in Nevada for first degree murder,
had known [Bowen] and Young since about 1980 and considered them both to be
friends. Young showed up at Murphy’s house in the summer of 2007 and asked to
borrow money.
Murphy asked Young about rumors that he was going to testify against
[Bowen]. Young said [Bowen] was on his deathbed and “ain’t ever going to go to
trial.” Young did not want [Bowen] to get out of prison because he had previously
stolen from [Bowen]. Young told Murphy, “I got the police buffaloed and I got a get
out of free jail [sic ] card.”
Sergeant Stelzer, retired at the time of trial, was the investigating officer who
interviewed Seibert in October 1995. Seibert gave a general description of where the
marijuana field could be found but never mentioned finding a body.
Seibert used the town of Viola, 74 miles from Susanville, as a reference point
in describing the area. He also told investigating officers the field was off of
Highway 44 or 88. Highway 44 is five miles from Susanville. Seibert seemed to be
a little confused over which road the field was near.
Sergeant Stelzer also testified that in 1988 Seibert took other investigators to
an area around Viola to look for a marijuana field. He described the location in terms
of Viola and its relation to Lassen Park, Highway 44, and Highway 88. No marijuana
field was found.
9

[Bowen], testifying in his own defense, denied killing Behm. He took Seibert
to a field near Viola, some 70 miles from Eagle Lake Road, thinking they would find
marijuana to steal there. [Bowen] had spent most of the day and night gambling
when Behm disappeared. He admitted the group stayed at the Continental Lodge in
Reno on July 13, 1988. Although he had hunted in the Eagle Lake Road area, he
denied taking Seibert or Faddis there. He admitted to prior convictions for felony
assault and solicitation of murder.
Rebuttal
Nevada records show that Young has continuously been in the custody of the
Nevada Department of Corrections since July 2006.
Motions for Dismissal
In December 2005 [Bowen] filed a pretrial motion to dismiss for prosecutorial delay.
The motion was heard the next month, and the court deferred ruling until hearing the
evidence at trial.
Proceedings were suspended from May 2006 to September 2007 because of
[Bowen’s] poor health. The trial started in January 2008 and [Bowen] renewed the
motion to dismiss, which the court denied without prejudice pending consideration
of the trial evidence.
After the jury convicted [Bowen], the court denied his motion to dismiss,
finding [Bowen] had not been prejudiced by the delay.16
In rejecting Bowen’s arguments, the Court of Appeal held:
DISCUSSION
I. PROSECUTORIAL DELAY
The information in this case was filed on July 27, 2005. In 1994 and 1996
Faddis and Young told the authorities that defendant had killed Behm. Defendant
contends the 10 years between the effective completion of the investigation and the
filing of charges violated due process and so prejudiced him that dismissal is the only
remedy. We disagree.
An unreasonable delay between the time an offense is committed and an
accusatory pleading is filed may violate both state and federal constitutional due
process rights. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504-505.) To
assess such an alleged violation, the court must balance any prejudice to the
defendant against the justification for the delay. (Id. at p. 505; accord, People v.
Catlin (2001) 26 Cal.4th 81, 107.) However, the defendant has the initial burden to
adduce some evidence of actual prejudice. (Serna v. Superior Court (1985) 40
Cal.3d 239, 249-250.) Speculation based on general claims that witnesses and
evidence are unavailable or witnesses’ memories have faded is insufficient to
discharge the defendants burden. (Shleffar v. Superior Court (1986) 178 Cal.App.3d
937, 946.) We review the trial court’s denial of a motion to dismiss on the ground

16

Bowen, 2009 WL 2470510 at *1-5.
10

of precharge delay only for abuse of discretion. (People v. Morris (1988) 46 Cal.3d
1, 38, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543545, fns. 5 & 6.)
In making the posttrial motion to dismiss, defense counsel claimed to have
been surprised when Seibert was called as a witness at the end of the trial, since the
prosecutor had not mentioned Seibert in her opening statement. Counsel made an
offer of proof that a defense investigator was immediately asked to locate one or both
of the sheriff’s deputies who accompanied Seibert to the marijuana field location.
The investigator was able to locate one of them, a Deputy Newsom, on the weekend
before the last defense evidence was submitted on the following Monday.
Deputy Newsom was in a hospital bed in his house, recovering from major
leg surgery and under a nurse’s care. He was in no position and had no ability to
travel to testify. The deputy had only the vaguest recollection of looking for a
marijuana field in connection with a criminal investigation some 20 years earlier.
Defense counsel argued that had the case been tried in 1994 or 1995 Deputy
Newsom presumably would have had a memory of the event. Counsel claimed this
would have seriously undermined Seibert’s credibility, as it could have established
he lied about the location of the marijuana field. Defense counsel also accused the
People of sandbagging [Bowen] by holding Seibert’s testimony until the last day of
the trial.
In rejecting [Bowen’s] claim, the court explained Seibert’s testimony was not
“particularly convincing or probative,” he was “clearly impeached,” and the jury was
able to determine his credibility “independent of any evidence that could have been
brought before the jury in rebuttal of what was not already done.”
[Bowen] argues on appeal that Seibert’s testimony was important
corroborating evidence of Faddis’s testimony describing her trip with [Bowen] to the
fictitious marijuana field where [Bowen] told her Behm was murdered. He asserts
that if [Bowen] had been tried in 1995, Deputy Newsom could have been called to
testify that Seibert took him to an “entirely different location” from the Eagle Lake
Road site.
Since Faddis described the location as no more than 30 to 40 feet from Eagle
Lake Road while the remains were actually 1,000 feet from the road, [Bowen] asserts
impeaching Seibert’s testimony was important as it would have also undercut the
credibility of Faddis’s testimony. If the jury had not believed Seibert or Faddis,
[Bowen] claims it could not have convicted him as the testimony of Young, an
accomplice, would have been insufficient by itself to convict [Bowen]. While
Sergeant Stelzer did recount a taped interview of Seibert during which he gave an
inaccurate description of the site’s location, [Bowen] argues this could not have had
the same impact as “the testimony of Deputy Newsom, who actually accompanied
Mr. Seibert into the field at a location other than Eagle Lake Road.”
Sergeant Stelzer’s testimony provided the jury with the information necessary
to assess Seibert’s credibility. The jurors were told that in a taped interview Seibert
described the location as being near the town of Viola, and that in 1988 he took
officers to the Viola area in an unsuccessful attempt to find the marijuana field.
11

Assuming he could have recalled the event in 1994 or 1995, at best Deputy Newsom
could have added details to Sergeant Stelzer’s testimony, describing more
specifically where Seibert took them and his demeanor during the unsuccessful
search for the marijuana field.
Placed in the context of the compelling evidence of [Bowen’s] guilt, the extra
details Deputy Newsom might have provided would not have influenced the jury’s
verdict. With their testimony, Young and Faddis corroborated each other on
numerous points, including [Bowen’s] fight with Young and the incident at the
Continental Lodge. It is true Faddis described walking only 30 or 40 feet from Eagle
Lake Road while the main decomposition area was about 1,000 feet from the road.
However, even if she did not provide the precise location of the site where the body
was found, Faddis’s ability to identify an area very close to the murder site supports
her credibility. In addition, Faddis was able to provide authorities with details
concerning the murder that were not released to the media.
Young’s testimony was corroborated by other evidence on several key points.
He testified to placing a .38-caliber handgun in the car for [Bowen], a weapon which
could have fired the shots according to the forensic testimony. His description of the
burglary of a house on a steep hill was consistent with police reports.
In light of the compelling evidence of [Bowen’s] guilt and the evidence
already impeaching Seibert’s testimony, we conclude [Bowen] was not prejudiced
by the delay. We therefore decline to address the Attorney General’s contention that
[Bowen’s] failure to renew his motion at the conclusion of the evidence forfeited the
claim.17
The due process test for impermissible pre-accusation delay requires a delicate balance of
the circumstances of each case.18 The Supreme Court has made clear that primarily the court
must compare the gravity of the actual prejudice shown to the reasons for the delay, and that the
first prong is that the defendant must show “actual prejudice” occurred from the delay.18 As the
Ninth Circuit has noted: “First, it is well recognized that delay by itself is only evidence of
possible prejudice, not actual prejudice. The due process calculus is not even brought into play
until actual prejudice is shown. This is largely because ‘the law has provided other mechanisms
17

Id. at *5-7.

18

See United States v. Marion, 404 U.S. 307, 324-25 (1971).

18

United States v. Lovasco, 431 U.S. 783, 789-97 (1977); see United States v. Moran,
759 F.2d 777, 780 (9th Cir. 1985).
12

to guard against possible as distinguished from actual prejudice resulting from the passage of
time between crime and arrest or charge.’”19 Applicable statutes of limitation are “the primary
guarantee bringing overly stale charges.”20 Under California law there is no limitation period for
bringing a murder charge.21
Unquestionably, the prosecutor had probable cause by 1996 to bring the charges against
Bowen. The Supreme Court has, however, made clear that is not the test. “[P]rosecutors are
under no duty to file charges as soon as probable cause exists but before they are satisfied they
will be able to establish the suspect’s guilt beyond a reasonable doubt.”22 The Supreme Court
further differentiated between investigative delay and delay solely to gain tactical advantage over
the accused.23 The former, investigative delay, is present in this case, while the later, to gain a
tactical advantage, is not. The Supreme Court held that “to prosecute a defendant following
investigative delay does not deprive him of due process, even if his defense might have been
somewhat prejudiced by the lapse of time”24 Finally, the Supreme Court, after noting that it had
conceded in Marion that it could not determine in the abstract the circumstances in which preaccusation delay would require dismissal and the paucity of cases in which defendants

19

Arnold v. McCarthy, 566 F.2d 1377, 1383 n.1 (quoting Marion, 404 U.S. at 422).

20

United States v. Ewell, 383 U.S. 116, 122 (1966); see Lovasco, 431 U.S. at 789.

21

People v. Archerd, 477 P.2d 421, 437 (Cal. 1970), abrogated on another ground in
People v. Nelson, 185 P.3d 49 (Cal. 2008).
22

Lovasco, 431 U.S. at 791. The Supreme Court went even further, declining to adopt a
constitutional rule that would require the prompt filing of charges as soon as enough evidence
was assembled to prove guilt beyond a reasonable doubt, but before the investigation was
completed. Id. at 792-93.
23

Id. at 795-96.

24

Id. at 796.
13

established they had been prejudiced, left “to the lower courts, in the first instance, the task of
applying the settled principles of due process that we have discussed to the particular
circumstances of individual cases.”25 Because the Supreme Court left it to the lower courts to
determine when the facts presented appropriate circumstances to dismiss for pre-accusation
delay, this Court cannot say that the decision of the California Court of Appeal was “contrary to,
or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” at the time the state court rendered its decision or “was
based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.”26 Bowen is not entitled to relief under his first ground.
Ground 2: Ineffective Appellate Counsel
In the Appellant’s Opening Brief under the heading of “C. The Federal Law of PreAccusation Delay,” was the following footnote: “But pre-arrest delay does not implicate Sixth
Amendment speedy trial rights or the California Constitution’s guarantee of a speedy trial.”27
According to Bowen, citing People v. Mirenda,28 this is incorrect, i.e., that under Mirenda,
speedy trial cases are actually instructive on the question of prejudice. Bowen argues that in not
bringing Mirenda to the attention of the California Court of Appeal, his appellate counsel was

25

Id. at 796-97.

26

28 U.S.C. § 2254(d); see Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)
(“[E]valuating whether a rule application was unreasonable requires considering the rule’s
specificity. The more general the rule, the more leeway courts have in reaching outcomes in
case-by-case determinations”); Richter, 131 S. Ct. at 778 (same citing Yarborough); Renico v.
Lett, 130 S. Ct. 1855, 1864 (2010) (same, citing Yarborough).
27

Lodged Doc. A at 19, n.5 (citing Marion, 404 U.S. at 324; People v. Nelson, 43 Cal.4th
1242, 1249-50 (2008)).
28

95 Cal. Rptr. 3d 702, 714 (Ct. App. 2009).
14

ineffective. Bowen presented this argument to the California appellate courts in his pro se
Motion to Recall the Remittitur. Both the California Court of Appeal and California Supreme
Court summarily denied Bowen’s motion without opinion or citation to authority.
A state court is not required to give reasons before its decision can be deemed to be
“adjudicated on the merits.”29 When there is no reasoned state-court decision denying an issue
presented to the state court, “it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the contrary.”30 “The
presumption may be overcome when there is reason to think that some other explanation for the
state court’s decision is more likely.”31 Where the presumption applies, this Court must perform
an independent review of the record to ascertain whether the state-court decision was
“objectively unreasonable.”32 In conducting an independent review of the record, this Court
presumes that the relevant state-court decision rested on federal grounds,33 giving that presumed
decision the same deference as a reasoned decision.34 The scope of this review is for clear error
of the state court ruling on the petition:

29

Richter, 131 S. Ct. at 785.

30

Id. at 784-85.

31

Id. at 785.

32

Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (quoting Pham v. Terhune,
400 F.3d 740, 742 (9th Cir. 2005) (per curiam)).
33

See Coleman v. Thompson, 501 U.S. 722, 740 (1991) (“The presumption at present
applies only when it fairly appears that a state court judgment rested primarily on federal law or
was interwoven with federal law, that is, in those cases where a federal court has good reason to
question whether there is an independent and adequate state ground for the decision.”); see also
Harris, 489 U.S. at 263.
34

Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition was
not entitled to § 2254(d) deference).
15

[A]lthough we cannot undertake our review by analyzing the basis for the state
court’s decision, we can view it through the “objectively reasonable” lens ground by
Williams. . . . Federal habeas review is not de novo when the state court does not
supply reasoning for its decision, but an independent review of the record is required
to determine whether the state court clearly erred in its application of controlling
federal law. Only by that examination may we determine whether the state court’s
decision was objectively reasonable.35
“[A]lthough we independently review the record, we still defer to the state court’s ultimate
decision.”36
Under Strickland, to demonstrate ineffective assistance of counsel, Bowen must show
both that his counsel’s performance was deficient and that the deficient performance prejudiced
his defense.37 A deficient performance is one in which “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.”38 Bowen
must show that defense counsel’s representation was not within the range of competence
demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for
counsel’s ineffectiveness, the result would have been different.39 An analysis that focuses “solely
on mere outcome determination, without attention to whether the result of the proceeding was

35

Delgado v. Lewis (Delgado II), 223 F.3d 976, 982 (9th Cir. 2000) (citation omitted).
But cf. Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (“Our standard of review is not
controlled by Delgado v. Lewis . . . . There, we held that where a state court provides no rational
for a decision, a habeas court does not apply de novo review, but instead determines whether the
state decision was objectively unreasonable based on its independent reading of the record. Here,
however, the state court was not silent as to its reasoning . . . . Therefore, we review de novo
whether Lewis waived his right to conflict free counsel . . . .”).
36

Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

37

Strickland v. Washington, 466 U.S. 668, 687 (1984).

38

Id.

39

Hill v. Lockhart, 474 U.S. 52, 57 (1985).
16

fundamentally unfair or unreliable, is defective.”40 An ineffective assistance of counsel claim
should be denied if the petitioner fails to make a sufficient showing under either one of the
Strickland prongs.41
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Schriro, supra,
at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard,
a state court has even more latitude to reasonably determine that a defendant has not
satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct.
2140, 158 L.Ed.2d 938 (2004) (“[E]valuating whether a rule application was
unreasonable requires considering the rule’s specificity. The more general the rule,
the more leeway courts have in reaching outcomes in case-by-case
determinations”).42
It is through this doubly deferential lens that a federal habeas court reviews Strickland claims
under the § 2254(d)(1) standard.43
The Supreme Court, applying the “doubly deferential standard,” has made clear that when
adjudicating ineffective assistance of counsel claims in federal habeas proceedings, unlike the

40

Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); see Strickland, 466 U.S. at 687; see
also Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) (“The essence of an ineffectiveassistance claim is that counsel’s unprofessional errors so upset the adversarial balance between
defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.”
(citing Strickland, 466 U.S. at 687)); United States v. Cronic, 466 U.S. 648, 656 (1984) (“The
right to the effective assistance of counsel is recognized not for its own sake, but because of the
effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged
conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not
implicated.” (citations omitted)).
41

See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and
need not address both prongs if the defendant fails on one).
42

Knowles v. Mirzayance, 556 U.S. 111, 121 (2009).

43

Id. (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)).
17

situation on direct review, focus is not on whether counsel’s performance fell below the
Strickland standard. Rather, the focus is on whether the state-court decision holding that counsel
was not ineffective constituted an “unreasonable application of federal law[,] [which] is different
from an incorrect application of federal law.”44
Under § 2254(d), a habeas court must determine what arguments or theories
supported or, as here, could have supported, the state court’s decision; and then it
must ask whether it is possible fairminded jurists could disagree that those arguments
or theories are inconsistent with the holding in a prior decision of this Court.45
Bowen relies upon the following statement in Mirenda:
In addition, although a federal speedy trial case, the reasoning in Doggett,
supra, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520, is instructive on the issue of
showing prejudice for analyzing either speedy trial or due process violations as the
constitutional guarantees “converge in protecting the same interest of the accused”
for a fair adjudication. (See Martinez, supra, 22 Cal.4th at p. 768, 94 Cal.Rptr.2d
381, 996 P.2d 32.) The court in Doggett noted “that impairment of one's defense is
the most difficult form of speedy trial prejudice to prove because time's erosion of
exculpatory evidence and testimony ‘can rarely be shown.’ [Citation.] And although
time can tilt the case against either side, [citations], one cannot generally be sure
which of them it has prejudiced more severely. Thus, we generally have to recognize
that excessive delay presumptively compromises the reliability of a trial in ways that
neither party can prove or, for that matter, identify. While such presumptive prejudice
cannot alone carry a Sixth Amendment [speedy trial] claim ..., it is part of the mix of
relevant facts, and its importance increases with the length of the delay.” (Doggett,
supra, 505 U.S. at pp. 655–656, 112 S.Ct. 2686.)
If the defendant meets his initial burden of showing prejudice from a
preaccusation delay for either a due process or state constitutional speedy trial claim,
“the prosecution must show justification for the delay. If the prosecution does that,
the trial court must balance the prejudice to the defendant resulting from the delay
against the prosecution's justification for the delay. [Citation.]” (People v. Lowe
(2007) 40 Cal.4th 937, 942, 56 Cal.Rptr.3d 209, 154 P.3d 358; Martinez, supra, 22
Cal.4th at pp. 766–767, 94 Cal.Rptr.2d 381, 996 P.2d 32.)46

44

Richter, 131 S. Ct. at 785 (emphasis in the original).

45

Id. at 786.

46

95 Cal. Rptr. 3d at 714.
18

Initially, this Court notes that Appellant’s Opening Brief was served and filed
September 29, 2008, and the Reply Brief on March 13, 2009. The decision in Mirenda was
handed down on June 16, 2009, three months after the Reply Brief was filed. Bowen argues that,
because the Court of Appeal decision in this case was not filed until August 13, 2009, appellate
counsel should have brought this “important case” to the attention of the appellate court. For the
reasons that follow, this Court disagrees.
First, the challenged statement in the footnote is a correct statement of the law—as the
cited cases hold, the Sixth Amendment right to a speedy trial is not “implicated.” Second, taken
in context, the statement cannot reasonably be construed to preclude the application of similar
principles of determining the prejudice prong of speedy trial violations and those involving preaccusation delay. Mirenda does nothing more than restate the unremarkable and well-established
principle of pre-accusation delay, i.e., the need for actual prejudice. Counsel devoted six and a
half pages in Appellant’s Opening Brief and another two pages in Appellant’s Reply Brief to the
subject of the prejudice Bowen suffered as a result of the pre-accusation delay in this case.47 The
failure to cite a non-controlling intermediate appellate court decision that does nothing more than
address the same legal principle argued in a brief, even if from a slightly different perspective,
hardly rises to the level of an error “so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment.”48 Finally, as noted above, the California Court of Appeal

47

Lodged Doc. A, at 20-26; Lodged Doc. C at 8-9.

48

Strickland, 466 U.S. at 687; cf. Davis v. Norris, 423 F.3d 868, 877-78 (8th Cir. 2005)
(failure to cite state supreme court decision that left a question open not ineffective assistance);
Underwood v. United States, 15 F.3d 16, 17-18 (2d Cir. 1993) (failure to cite a particular case
that did not represent an intervening change in law rather than failing to raise an issue entirely is
not ineffective assistance of counsel).
19

addressed the prejudice issue in depth, and its analysis does not substantially differ from the
prejudice analysis in Mirenda.
Bowen has failed to overcome the strong presumption that counsel’s performance fell
within the wide range of reasonable professional assistance or that his defense was prejudiced by
the alleged omission as required by Strickland-Hill. This Court cannot say that the assumed
decisions of the California Court of Appeal and California Supreme Court that Mirenda did not
compel reversal were “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” or were “based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”49 Nor, viewing the matter through the doubly-deferential lens of MirzayanceRichter, can this Court find that the state courts unreasonably applied the correct legal principle
to the facts of Bowen’s case within the scope of Andrade-Williams-Landrigan-Richter; i.e., the
state-court decisions were not more than incorrect or erroneous, their application of clearly
established federal law was not objectively unreasonable. Bowen is not entitled to relief under
his second ground.

49

28 U.S.C. § 2254(d).
20

V. CONCLUSION AND ORDER
Bowen is not entitled to relief on either ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.50 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.51
The Clerk of the Court is to enter judgment accordingly.
Dated: June 5, 2012.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

50

28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003))).
51

See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
21