Jackson v. Flemming et al

Filing 21

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS re 1 Petition for Writ of Habeas Corpus filed by Walter Jackson. Signed by Judge Charles R. Breyer on 4/11/12. (Attachments: # 1 Certificate of Service)(tlS, COURT STAFF) (Filed on 4/11/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WALTER JACKSON
Petitioner,

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vs.
GREG LEWIS, Acting Warden,
Respondent.

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No. C 10-4014 CRB (PR)
ORDER DENYING
PETITION FOR A WRIT OF
HABEAS CORPUS

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Petitioner, a state prisoner at California State Prison, Solano, in Vacaville,

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California, seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a

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conviction and sentence from Contra Costa County Superior Court. For the

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reasons set forth below, a writ of habeas corpus will be denied.

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STATEMENT OF THE CASE
Petitioner was convicted by a jury of first degree murder. On November

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21, 2007, he was sentenced to an indeterminate term of 25 years to life, to be

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served consecutively with a previously imposed five-year term for arson arising

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out if the same incident.

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On May 25, 2009, the California Court of Appeal affirmed the conviction
and denied petitioner's request for state habeas relief.
On August 12, 2009, the Supreme Court of California denied review and,
on June 23, 2010, denied petitioner's final application for state habeas relief.

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On September 7, 2010, petitioner filed the instant petition for a writ of

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habeas corpus under § 2254. Per order filed on February 14, 2011, the court

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found the claims cognizable, when liberally construed, and ordered respondent to

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show cause why a writ of habeas corpus should not be granted. After several

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extensions of time, respondent has filed an answer to the order to show cause and

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petitioner has filed a traverse.

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STATEMENT OF THE FACTS

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The California Court of Appeal summarized the facts of the case as

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follows:
The body of the victim in this case, 82-year-old Cora
Morgan, was found by firefighters who had come to her apartment
on December 29, 2004, to put out a fire.
On December 30, 2004, and autopsy was performed on the
victim. She was dressed in a nightgown and a sweatshirt and had
burn injuries on the outside of her body and blood in the mouth and
nose area.

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The victim did not, however, die of smoke inhalation. She
was asphyxiated before the fire ever occurred. Her "upper airway
was obstructed by . . . wadded material at the back of her throat . . .
." In addition, she had injuries to her neck and throat that were
"consistent with manual strangulation." Either of these could have
killed her. There were also injuries to the front of her lips which
indicated that "she could have had a hand held over her mouth as
well."
The victim sustained other injuries before she died. She was
bruised on the front left shoulder, which was evident from an
internal examination. The victim also "had an area of bleeding
under the scalp at the back of the head." There were also "tears to
the mucus membrane lining the mouth . . . and a small amount of
bleeding" which could have been the result of the "lips being
pushed against the teeth, a blow to the mouth . . . being struck in
the mouth or perhaps a combination of the two." The victim also
had a "slight fracture between the fourth and fifth spinal segments
fo her neck" which was not related to the asphyxiation but, rather,
"is something that you could see from a number of circumstances,
the individual perhaps taking a fall and causing a crack to occur
there."
The fire in the two story apartment was the result of three
separate fires, each set intentionally – two in upstairs bedrooms by

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burning candles and one downstairs in the kitchen. The victim's
body was found downstairs, in the kitchen, where the worst of the
fire damage occurred.
When they found the body, firefighters notified Walnut
Creek police officer Carol Burroughs, who was on the scene to
provide traffic control for the firefighters. Burroughs learned that
earlier that evening a man had inquired about the person inside the
apartment. This man, accompanied by a woman, approached
Burroughs shortly after she learned of the victim's death.
Burroughs identified the man as defendant. The woman with
defendant was the victim's daughter and defendant's wife, Pam
Jackson. Burroughs told Pam Jackson that her mother had died in
the fire. Pam Jackson was very upset and fell to the ground.
Defendant comforted her.
It was raining and Burroughs offered to let defendant and
Pam Jackson sit in her car. As Burroughs was accompanying
defendant and Pam Jackson to her car, defendant "made a comment
. . . that the victim was always angry at him and evidently was
kicking him out of the apartment."
Randy Dickey, a police officer for the City of Walnut Creek
was assigned to lead the investigation into the victim's death.
Dickey interviewed defendant at the police station at around
midnight the night of the victim's death. Another officer spoke
with Pamela Jackson. Although they were indoors, defendant kept
his parka on, zipped up to the neck. He also kept his hat on.
Defendant told Dickey he wasn't at the house when the fire started.
He claimed not to know how the fire started. He described the
victim, who was his mother-in-law, as a very healthy woman.
Defendant said he had a strained relationship with the victim, that
he tried to please her, but she was not very flexible to his needs.
The victim had just told him that he needed to move out of the
apartment.
Defendant told Dickey he suspected the victim's death had
not been an accident. "[H]e said that he had received this
mysterious letter from someone in his past that said that 'You'll be
blamed' and 'Remember Beasley.'" During this interview, defendant
never took his jacket off although Dickey asked him several times
if he would do so. At one point, Dickey asked defendant if he
could photograph defendant. Defendant allowed Dickey to take
one photograph, but would not unzip his jacket or take it off.

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Defendant and Pamela Jackson were taken to a hotel at
around 3:00 or 4:00 that morning. Dickey learned later that
morning that the victim's death was a homicide. Dickey
reinterviewed defendant. The interview was videotaped. Dickey
told defendant that the victim had been murdered. He did not give
defendant any other details about the murder. He also told
defendant that the fire in the apartment was arson.

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Defendant repeated his original statement about what he had
been doing the day of the victim's death. Defendant then indicated
he wanted to speak to Pamela Jackson. Dickey thought Jackson
"knew what the truth was, and she wanted to convince [defendant]
to tell us the truth about what had happened to [the victim]."
Jackson asked Dickey to remain in the room during her
conversation with defendant. Jackson asked defendant to "tell her
the truth." Defendant leaned forward and whispered in her ear.
Jackson "started to cry and said that she could have peace now and
thanked him for telling her what happened. Dickey heard
defendant say "She kept coming at me. She kept coming at me."
Defendant also gestured with his arm "like he was trying to get
somebody away or strike somebody with an elbow." At some
point, defendant also mentioned something about a knife and that
"she just wouldn't let . . . him go."

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Dickey did not hear all of the conversation between Jackson
and defendant because defendant was whispering to his wife.
Defendant told his wife not to tell anyone what he had said.

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Dickey observed defendant's arms during this interview. He
noticed "some semicircular gouges" on his "inner elbow, inner arm
area" on both arms. "There appeared to be fingernail gouges from
somebody grabbing an arm." Defendant explained these injuries by
saying that he had climbed over a fence to try to get into the
apartment.
Dickey asked defendant how the victim had died and
defendant told him "'[s]he was strangled.'" When Dickey asked him
where defendant strangled the victim, defendant "backs away and
said he wasn't involved and he didn't do anything . . . and ultimately
that he didn't want to talk to us anymore about it." Defendant was
arrested and transported to jail.

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A Sergeant Edwards interviewed defendant again after his
arrest, while Dickey monitored the interview from the room next
door. The interview was videotaped. During this interview,
defendant admitted involvement in the victim's death. Defendant
told Edwards the victim "had approached him at the top fo the
stairs, and that he had made a motion back which knocked her
down the stairs." "[H]e dragged her on a rug into the kitchen, and
then strangled her and forced a wad of dinner napkins, holiday
napkins, down her throat." He also said the victim wasn't dead so
he "cut off a cord from an electrical toaster that was there in the
kitchen and used the toaster to tie around her neck. And he did this
at least two – I think three times, and each time when he released
the cord, he saw some blood bubbles come out of her nose. And he
thought that she was still alive, so he reapplied the electrical cord to
finish the job, and then ultimately the napkins." The cord was
never found. Defendant explained that the victim was still alive
after the fall down the stairs, and that he strangled her because he

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felt he would be blamed for the fall and "he did not want to go back
to prison." Defendant set the fire because "he wanted to cover it up
so it made it look like he wasn't there."
Defendant was returned to jail. That night, he spoke to
Walnut Creek Police Officer Vevera. Vevera, who had listened to
the conversation between defendant and his wife, told defendant
he'd heard him admit that he had elbowed the victim, "that she
started bleeding and that he panicked." Defendant said, "Oh you
must really have heard that then."

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Walnut Creek Police Sergeant Edwards spoke to defendant
shortly after defendant had been informed of the victim's death.
Defendant asked Edwards if he suspected "foul play" and told him
that he (defendant) had beat somebody up several years earlier and
had received, three months before the victim's death, a threatening
letter to the effect that defendant was "going to be blamed for this."
Defendant also referred to the victim as a "bitch and a nasty
woman." Edwards asked defendant if he suspected anyone of
killing the victim, and defendant said he should check into his
wife's "associates." At some point during the investigation,
Edwards confirmed that Pamela Jackson was working at the time
the fire occurred.
Defendant was interviewed a third time. This interview was
conducted by Edwards and took place on January 3, 2005.
Defendant admitted to Edwards that he was "the sole responsible"
for the victim's death. This interview was videotaped and, in the
interview, defendant contradicted a statement he'd made earlier to
the effect that the victim had pulled a knife on him. Defendant told
Edwards that the victim had fallen down the stairs. She wasn't
badly injured. Defendant said he "panicked" because "he was
afraid he was going to go to jail for the rest of his life." He thought
about calling 911 after the victim fell down the stairs, but instead
"dragged her away from the door."
The jury was shown a videotape of excerpts from the
January 3, 2005, interview. In these excerpts, defendant admitted
that he dragged the victim into the kitchen after she fell down the
stairs. He strangled her with a cord. Not sure if the victim was
dead, defendant put napkins in defendant's [sic] mouth. He put
blankets around her and then tried to put them in the stove so her
body would burn.
At trial, defendant admitted to setting the fire, but testified
that he had lied in his earlier confessions to killing the victim. He
stated that his mother-in-law did not "have not one mark . . . bruise
on her neck, period, that was made from a human being while she
was alive." Defendant testified that "I hit her [the victim's] arms
and throw her over a little bit. . . . [¶] We were at the top of the
stairs. She swung. Something happened that caused her to go back
against the wall and do – kind of grab her chest and she went down

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the stairs. [¶] That's what happened. That's the reality fo it. [¶] And
the other reality of it . . . is that I was completely not in my right
state of mind at this interview. I was – I wasn't in my right state of
mind. I wasn't because I just wanted to just convict myself. [¶] But
I was also on suicide watch. I was on suicide watch. I believe I
had even made a news – I had made a noose, and I was going to put
it around my neck and tie it to the – tie it to the cell, tie it to the bars
in the unit and jump off the tier and break my own neck. [¶] That
was just before this . . . . People arrived and pulled me into the
room and started doing the interview with me. That's where my
mind was at. [¶] So when I got in that room, I couldn't physically
kill myself, but I was doing everything I could emotionally,
psychologically and verbally to kill myself."

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People v. Jackson, No. A120092, 2009 WL 1482217, at **1-4 (Cal. Ct. App.

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2009) (Resp't Ex. H).

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STANDARD OF REVIEW
This court may entertain a petition for a writ of habeas corpus "in behalf

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States." 28 U.S.C. § 2254(a).

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The writ may not be granted with respect to any claim that was

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adjudicated on the merits in state court unless the state court's adjudication of the

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claim: "(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by

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the Supreme Court of the United States; or (2) resulted in a decision that was

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based on an unreasonable determination of the facts in light of the evidence

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presented in the State court proceeding." Id. § 2254(d).

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"Under the 'contrary to' clause, a federal habeas court may grant the writ if

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the state court arrives at a conclusion opposite to that reached by [the Supreme]

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Court on a question of law or if the state court decides a case differently than

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[the] Court has on a set of materially indistinguishable facts." Williams v.

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Taylor, 529 U.S. 362, 412-13 (2000). "Under the 'reasonable application clause,'

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a federal habeas court may grant the writ if the state court identifies the correct

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governing legal principle from [the] Court's decisions but unreasonably applies

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that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court

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concludes in its independent judgment that the relevant state-court decision

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applied clearly established federal law erroneously or incorrectly. Rather, that

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application must also be unreasonable." Id. at 411. A federal habeas court

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making the "unreasonable application" inquiry should ask whether the state

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court's application of clearly established federal law was "objectively

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unreasonable." Id. at 409.

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The only definitive source of clearly established federal law under 28

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U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme

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Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331

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F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive

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authority" for purposes of determining whether a state court decision is an

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unreasonable application of Supreme Court precedent, only the Supreme Court's

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holdings are binding on the state courts and only those holdings need be

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"reasonably" applied. Id.

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CLAIMS & ANALYSIS

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Petitioner raises three claims for relief under § 2254: (1) prosecutor

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withheld a toxicology report; (2) denial of a speedy preliminary hearing, as

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required by state law; and (3) ineffective assistance of counsel based on counsel's

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failure to investigate toxicology reports. The claims are without merit.

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A.

Suppression of Toxicology Report

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Petitioner claims that the prosecution withheld a toxicology report from

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Dr. Gregory Reiber, a forensic pathologist who testified to the victim's injuries

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and cause of death. According to petitioner, Dr. Reiber's findings – namely that

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the victim was asphyxiated – was flawed because Dr. Reibert did not receive and

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examine the toxicology report before determining the cause of death.

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In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held

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that "the suppression by the prosecution of evidence favorable to an accused

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upon request violates due process where the evidence is material either to guilt or

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to punishment, irrespective of the good faith or bad faith of the prosecution."

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The Court has since made clear that the duty to disclose such evidence applies

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even when there has been no request by the accused, United States v. Agurs, 427

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U.S. 97, 107 (1976), and that the duty encompasses impeachment evidence as

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well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985).

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"There are three components of a true Brady violation: [t]he evidence at

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issue must be favorable to the accused, either because it is exculpatory, or

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because it is impeaching; that evidence must have been suppressed by the State,

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either willfully or inadvertently; and prejudice must have ensued." Strickler v.

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Greene, 527 U.S. 263, 281-82 (1999). "[T]here is never a real 'Brady violation'

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unless the nondisclosure was so serious that there is a reasonable probability that

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the suppressed evidence would have produced a different verdict." Id. at 281.

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Petitioner's claim fails because he does not show that the toxicology report

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was exculpatory or otherwise favorable to him. The report petitioner points to

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notes that food particles were isolated from a blood clot found in the victim's

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airway. See Traverse Ex. A at 4 ("May 2, 2005 Report"). At trial, Dr. Reiber

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testified that he investigated the obstruction in the victim's airway to ensure that

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the victim did not choke on food. See Resp't Ex. B at 613-14. This is consistent

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with the May 2, 2005 Report's finding that the food particles were so small that

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they were detected only with the help of a microscopic. Nothing in the May 2,

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2005 report (or any other toxicology report in the record) undermines Dr.

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Reiber's conclusion that the victim did not choke on food, or the California Court

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of Appeal's determination that the report "does not suggest in any way that the

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food particles discovered in the airway material led to the victim's death."

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People v. Jackson, slip op. at 11.
In view of the limited value of the May 2, 2005 Report (or of any other

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toxicology report in the record) to the defense, it simply cannot be said that the

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alleged "nondisclosure was so serious that there is a reasonable probability that

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the suppressed evidence would have produced a different verdict." Strickler,

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527 U.S. at 281. Nor can it be said that the state court's rejection of petitioner's

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claim was contrary to, or an unreasonable application of, Brady and its progeny,

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or was based on an unreasonable determination of the facts. See 28 U.S.C. §

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2254(d). Petitioner is not entitled to federal habeas relief on this claim.

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B.

Denial of Speedy Preliminary Hearing
Petitioner claims that he was denied his right to a speedy preliminary

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hearing under California Penal Code section 859b. The claim is without merit

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because it is well-established that "federal habeas corpus relief does not lie for

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errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991).1

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C.

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Ineffective Assistance of Counsel
Petitioner claims ineffective assistance of counsel based on trial counsel's

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failure to investigate toxicology reports that would have shown that the victim's

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death was accidental. The claim is without merit.

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No federal constitutional right is implicated by the state requirement for a
speedy preliminary hearing either. Although the Sixth Amendment guarantees
the accused the right to a speedy trial in all criminal prosecutions, it has no
application until the putative defendant becomes an accused. See United States
v. Marion, 404 U.S. 307, 313 (1971).

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To prevail on a claim of ineffective assistance of counsel, petitioner must

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pass the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687

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(1984). Petitioner must demonstrate that: (1) "counsel's representation fell below

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an objective standard of reasonableness," and (2) "counsel's deficient

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performance prejudiced the defense." Id. at 687-88. Concerning the first

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element, there is a "strong presumption that counsel's conduct falls within the

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wide range of reasonable professional assistance." Id. at 689. Hence, "judicial

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scrutiny of counsel's performance must be highly deferential." Id. To fulfill the

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second element, a "defendant must show that there is a reasonable probability

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that, but for counsel's unprofessional errors, the result of the proceeding would

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have been different." Id. at 694. A reasonable probability is a probability

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sufficient to undermine the confidence in the outcome. Id.

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For a federal court reviewing a habeas petition brought by a state prisoner,

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"[t]he pivotal question is whether the state court's application of the Strickland

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standard was unreasonable," which "is different from asking whether defense

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counsel's performance fell below Strickland's standard." Richter v. Harrington,

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131 S. Ct. 770, 785 (2011). "The standards created by Strickland and § 2254(d)

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are both 'highly deferential' . . . and when the two apply in tandem, review is

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'doubly' so." Id. at 788. The court must ask not "whether counsel's actions were

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reasonable," but "whether there is any reasonable argument that counsel satisfied

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Strickland's deferential standard." Id.

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Petitioner's ineffective assistance of counsel claim is without merit

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because the state courts' rejection of the claim was not objectively unreasonable. See

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28 U.S.C. § 2254(d). The California Court of Appeal determined that the reports

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petitioner cited "were of no assistance in showing that the victim died

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accidentally." People v. Jackson, slip op. at 12. The May 2, 2005 Report did

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"not suggest in any way that the food particles discovered in the airway material

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led to the victim's death," and another report petitioner summarized (put did not

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produce) did not "even so much as suggest that the victim's death was

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accidental." Id. at 11. Consequently, the court concluded that petitioner had not

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carried his burden of establishing prejudice because there is "no reasonable

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probability that [the reports] would have altered the outcome of these

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proceedings." Id. at 12. The state court's application of the Strickland standard

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was not unreasonable. See Richter, 131 S. Ct. at 785. After all, the jury had before

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it extensive and quite convincing evidence that the victim dies of asphyxiation

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after petitioner choked her with a cord and then stuffed paper napkins down her

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throat. Petitioner is not entitled to federal habeas relief on this claim.
CONCLUSION

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After a careful review of the record and pertinent law, the court is
satisfied that the petition for a writ of habeas corpus must be DENIED.

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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a

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certificate of appealability (COA) under 28 U.S.C. § 2253(c) is DENIED

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because petitioner has not demonstrated that "reasonable jurists would find the

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district court's assessment of the constitutional claims debatable or wrong."

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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The clerk shall enter judgment in favor of respondent and close the file.

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SO ORDERED.

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DATED:

April 11, 2012
CHARLES R. BREYER
United States District Judge

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