Peacock v. McDonald

Filing 13

ORDER DENYING PETITION re 1 Petition for Writ of Habeas Corpus filed by Richard D. Peacock. Signed by Judge William Alsup on 11/17/11. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 11/21/2011)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 RICHARD DEAN PEACOCK, 12 13 14 No. C 10-3786 WHA (PR) Petitioner, 11 For the Northern District of California United States District Court 10 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND CERTIFICATE OF APPEALABILITY v. MIKE MCDONALD, Warden, Respondent. / 15 16 17 INTRODUCTION Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. 2254. Respondent was ordered to show cause why the writ should 19 not be granted. Respondent filed an answer and a memorandum of points and authorities in 20 support of it, and petitioner filed a traverse. 21 STATEMENT 22 Alan Simon was at home in Westlake, California, on June 17, 2005, when a man he 23 later identified as petitioner knocked on his door and then shot him in the head and the wrist 24 (Resp. Ex. A at 6). Simon had recently beaten petitioner’s co-defendant, Kenny Rogers, in a 25 local election, and witnesses testified that Rogers had hired petitioner to kill Simon (id. 7-8). In 26 2009, after petitioner’s trial was over, Rogers was tried and convicted of attempted murder and 27 conspiracy and was sentenced to a term of twenty-five years to life in state prison. When 28 Rogers was called to testify at petitioner’s trial, he invoked his Fifth Amendment right to 1 remain silent; when petitioner was called to testify at Rogers’s trial, he refused and was held in 2 contempt of court (Trav. 2). As the sole pending claim in this matter challenges the denial of 3 his requests for transcripts and does not concern the trial, the conviction or the sentence 4 themselves, a more detailed account of the crimes is not necessary. 5 In 2006, in Mendocino County Superior Court, petitioner was convicted of attempted 6 murder (Cal. Pen, Code §§ 187, 664(a)), possession of a firearm by a felon (Cal. Pen. Code § 7 12021(a)), and shooting at an inhabited dwelling (Cal. Pen. Code § 246). Sentence 8 enhancements for using a firearm, for a prior prison term, and for two prior “strike” convictions 9 were found true (Cal. Pen. Code §§ 667(a), 667.5(b), 1170.12, 12022.53(a)(1)). The trial court sentenced him to a term of seventy-one years to life in state prison. In 2008, the California 11 For the Northern District of California United States District Court 10 Court of Appeal affirmed his conviction and sentence and the California Supreme Court denied 12 review (Resp. Exs. A, B). Thereafter, petitioner filed habeas petitions in all three levels of the 13 California courts seeking transcripts of the separate trial of his co-defendant, Kenny Rogers, 14 which petitions were denied (Resp. Ex. C). 15 ANALYSIS 16 Petitioner claims that his rights to due process and equal protection were violated when 17 the state courts denied his request for a transcript of the trial of his co-defendant Rogers, which 18 transcript he wanted in order to pursue state habeas petitions. 19 Petitioner may not obtain habeas relief based upon this claim unless the state courts’ 20 denial of his requests for transcripts was “was contrary to, or involved an unreasonable 21 application of, clearly established Federal law, as determined by the Supreme Court of the 22 United States.” 28 U.S.C. 2254(d)(1); see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 23 (2000) (Section 2254(d)(1) applies to questions of law and to mixed questions of law and fact 24 decided by the state courts). “Clearly established federal law, as determined by the Supreme 25 Court of the United States” refers to “the holdings, as opposed to the dicta, of [the Supreme] 26 Court’s decisions as of the time of the relevant state-court decision.” Id. at 412. “Section 27 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court’s 28 jurisprudence.” Williams, 529 U.S. at 412. If there is no Supreme Court precedent that controls 2 1 on the legal issue raised by a petitioner in state court, the state court’s decision cannot be 2 contrary to, or an unreasonable application of, clearly-established federal law. Carey v. 3 Musladin, 549 U.S. 70, 77 (2006). 4 The Supreme Court has held that due process and equal protection require that indigent 5 criminal defendants be provided with free transcripts of their trials for use on direct appeal. See 6 Britt v. North Carolina, 404 U.S. 226, 227 (1971); Griffin v. Illinois, 351 U.S. 12, 18-20 (1956) 7 (per curiam). Here, however, petitioner does not seek a transcript of his own trial, nor does he 8 seek transcripts in order to pursue a direct appeal, which was the case in Britt and Griffin. 9 Rather, he seeks the transcript of Rogers’s separate trial, and he seeks it for the purposes of collateral challenges to his petition. There is no Supreme Court precedent, and petitioner 11 For the Northern District of California United States District Court 10 certainly cites none, that an indigent defendant has a constitutional right to free transcripts of 12 someone else’s trial, such as the separate trial of a co-defendant, or to free transcripts in order to 13 pursue collateral review, as opposed to an appeal. Thus, there is no Supreme Court precedent 14 requiring the State to provide petitioner with a free transcript of Rogers’s trial for use on 15 petitioner’s collateral challenges to his conviction, and the state courts’ denial of his requests 16 for such transcripts cannot be contrary to nor an unreasonable application of “clearly 17 established federal law as determined by the Supreme Court.” 28 U.S.C. 2254(d)(1). 18 Furthermore, the state court’s denial of petitioner’s request for transcripts in this case 19 does not violate his constitutional rights. Petitioner neither identifies what claims he would 20 pursue if he had the transcripts of Rogers’s trial, nor explains how the transcripts would help his 21 collateral challenges to his conviction or sentence succeed. California law requires an indigent 22 defendant to "establish with some certainty how the requested materials may be useful on 23 appeal" before a transcript is provided free of charge. Cal. Ct. App., First App. Dist. Local Rule 24 6(d) (2003). Such statutes or rules requiring an indigent defendant to show a specific need for 25 an entire trial transcript do not run counter to clearly established federal law. See Boyd v. 26 Newland, 467 F.3d 1139, 1150-51 (9th Cir. 2006) (California rule requiring an indigent 27 defendant to show a specific need to a complete voir dire transcript does not violate clearly 28 established federal law). 3 1 As the denial of petitioner’s requests for transcripts of his co-defendant’s trial was 2 neither contrary to nor an unreasonable application of clearly established federal law within the 3 meaning of 28 U.S.C 2254(d)(1), he is not entitled to federal habeas relief. 4 CONCLUSION 5 For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. 6 Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to which the petition is denied. Petitioner has failed to make a substantial showing that his claims 9 amounted to a denial of his constitutional rights or demonstrate that a reasonable jurist would 10 find the denial of his claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). 11 For the Northern District of California rule on whether a petitioner is entitled to a certificate of appealability in the same order in 8 United States District Court 7 Consequently, no certificate of appealability is warranted in this case. 12 The clerk shall enter judgment and close the file. 13 IT IS SO ORDERED. 14 15 Dated: November 17 , 2011. 16 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 17 18 19 20 21 G:\PRO-SE\WHA\HC.10\PEACOCK3786.RUL.wpd 22 23 24 25 26 27 28 4

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