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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RICHARD DEAN PEACOCK,

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No. C 10-3786 WHA (PR)

Petitioner,

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For the Northern District of California

United States District Court

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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
CERTIFICATE OF
APPEALABILITY

v.
MIKE MCDONALD, Warden,
Respondent.
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INTRODUCTION
Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. 2254. Respondent was ordered to show cause why the writ should

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not be granted. Respondent filed an answer and a memorandum of points and authorities in

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support of it, and petitioner filed a traverse.

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STATEMENT

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Alan Simon was at home in Westlake, California, on June 17, 2005, when a man he

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later identified as petitioner knocked on his door and then shot him in the head and the wrist

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(Resp. Ex. A at 6). Simon had recently beaten petitioner’s co-defendant, Kenny Rogers, in a

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local election, and witnesses testified that Rogers had hired petitioner to kill Simon (id. 7-8). In

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2009, after petitioner’s trial was over, Rogers was tried and convicted of attempted murder and

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conspiracy and was sentenced to a term of twenty-five years to life in state prison. When

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Rogers was called to testify at petitioner’s trial, he invoked his Fifth Amendment right to

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remain silent; when petitioner was called to testify at Rogers’s trial, he refused and was held in

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contempt of court (Trav. 2). As the sole pending claim in this matter challenges the denial of

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his requests for transcripts and does not concern the trial, the conviction or the sentence

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themselves, a more detailed account of the crimes is not necessary.

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In 2006, in Mendocino County Superior Court, petitioner was convicted of attempted

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murder (Cal. Pen, Code §§ 187, 664(a)), possession of a firearm by a felon (Cal. Pen. Code §

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12021(a)), and shooting at an inhabited dwelling (Cal. Pen. Code § 246). Sentence

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enhancements for using a firearm, for a prior prison term, and for two prior “strike” convictions

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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

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For the Northern District of California

United States District Court

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Court of Appeal affirmed his conviction and sentence and the California Supreme Court denied

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review (Resp. Exs. A, B). Thereafter, petitioner filed habeas petitions in all three levels of the

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California courts seeking transcripts of the separate trial of his co-defendant, Kenny Rogers,

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which petitions were denied (Resp. Ex. C).

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ANALYSIS

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Petitioner claims that his rights to due process and equal protection were violated when

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the state courts denied his request for a transcript of the trial of his co-defendant Rogers, which

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transcript he wanted in order to pursue state habeas petitions.

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Petitioner may not obtain habeas relief based upon this claim unless the state courts’

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denial of his requests for transcripts was “was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court of the

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United States.” 28 U.S.C. 2254(d)(1); see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09

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(2000) (Section 2254(d)(1) applies to questions of law and to mixed questions of law and fact

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decided by the state courts). “Clearly established federal law, as determined by the Supreme

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Court of the United States” refers to “the holdings, as opposed to the dicta, of [the Supreme]

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Court’s decisions as of the time of the relevant state-court decision.” Id. at 412. “Section

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2254(d)(1) restricts the source of clearly established law to [the Supreme] Court’s

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jurisprudence.” Williams, 529 U.S. at 412. If there is no Supreme Court precedent that controls
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on the legal issue raised by a petitioner in state court, the state court’s decision cannot be

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contrary to, or an unreasonable application of, clearly-established federal law. Carey v.

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Musladin, 549 U.S. 70, 77 (2006).

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The Supreme Court has held that due process and equal protection require that indigent

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criminal defendants be provided with free transcripts of their trials for use on direct appeal. See

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Britt v. North Carolina, 404 U.S. 226, 227 (1971); Griffin v. Illinois, 351 U.S. 12, 18-20 (1956)

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(per curiam). Here, however, petitioner does not seek a transcript of his own trial, nor does he

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seek transcripts in order to pursue a direct appeal, which was the case in Britt and Griffin.

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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

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For the Northern District of California

United States District Court

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certainly cites none, that an indigent defendant has a constitutional right to free transcripts of

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someone else’s trial, such as the separate trial of a co-defendant, or to free transcripts in order to

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pursue collateral review, as opposed to an appeal. Thus, there is no Supreme Court precedent

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requiring the State to provide petitioner with a free transcript of Rogers’s trial for use on

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petitioner’s collateral challenges to his conviction, and the state courts’ denial of his requests

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for such transcripts cannot be contrary to nor an unreasonable application of “clearly

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established federal law as determined by the Supreme Court.” 28 U.S.C. 2254(d)(1).

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Furthermore, the state court’s denial of petitioner’s request for transcripts in this case

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does not violate his constitutional rights. Petitioner neither identifies what claims he would

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pursue if he had the transcripts of Rogers’s trial, nor explains how the transcripts would help his

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collateral challenges to his conviction or sentence succeed. California law requires an indigent

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defendant to "establish with some certainty how the requested materials may be useful on

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appeal" before a transcript is provided free of charge. Cal. Ct. App., First App. Dist. Local Rule

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6(d) (2003). Such statutes or rules requiring an indigent defendant to show a specific need for

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an entire trial transcript do not run counter to clearly established federal law. See Boyd v.

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Newland, 467 F.3d 1139, 1150-51 (9th Cir. 2006) (California rule requiring an indigent

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defendant to show a specific need to a complete voir dire transcript does not violate clearly

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established federal law).
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As the denial of petitioner’s requests for transcripts of his co-defendant’s trial was

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neither contrary to nor an unreasonable application of clearly established federal law within the

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meaning of 28 U.S.C 2254(d)(1), he is not entitled to federal habeas relief.

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CONCLUSION

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For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

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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

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amounted to a denial of his constitutional rights or demonstrate that a reasonable jurist would

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find the denial of his claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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For the Northern District of California

rule on whether a petitioner is entitled to a certificate of appealability in the same order in

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United States District Court

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Consequently, no certificate of appealability is warranted in this case.

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The clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: November

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, 2011.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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