Gore v. Horel
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; GRANTING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 8/15/2011. (ndr, COURT STAFF) (Filed on 8/15/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS; GRANTING
CERTIFICATE OF APPEALABILITY
Petitioner,
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No. C 08-04365 CW (PR)
ANTHONY C. GORE,
v.
ROBERT A. HOREL, Warden,
Respondent.
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/
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Petitioner Anthony Clark Gore is a prisoner of the State of
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California, incarcerated at California Medical Facility.
On
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September 17, 2008, Petitioner filed a pro se petition for a writ
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of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the
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validity of his 2005 state conviction.
Respondent opposes the
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petition.
Petitioner has not filed a traverse.
Having considered
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all of the papers filed by the parties, the Court DENIES the
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petition.
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BACKGROUND
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The following is a summary of the facts taken from the
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December 5, 2007 state appellate court’s unpublished opinion on
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direct appeal.
Respondent. Ex. F1, People v. Gore, No. A112059,
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2007 WL 4248859 at *1-6 (Cal. Ct. App. 1 Dist. Dec. 5, 2007).
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All references herein to exhibits are to the exhibits submitted
by Respondent in support of the Answer.
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A. Wagner’s Death
Petitioner was a patient at Napa State Mental Hospital.2
He
shared a room at the hospital with patient Dennis Wagner.
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7:00 and 7:30, on the morning of May 3, 2002, another patient,
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Randy Robertson, found Wagner in his bed, not breathing.
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face was swollen, as if he had been in a fight.
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lying awake on his bed.
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with Wagner, and Petitioner answered, “The mother fucker’s asleep.”
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Robertson went to get a nurse, James Miller, who came to the room.
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United States District Court
For the Northern District of California
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Petitioner was lying on his bed, on his back, with his arms folded
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behind his head.
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Miller saw that Wagner had no pulse and that his neck and upper
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mouth areas were swollen.
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for twenty to thirty minutes to resuscitate Wagner.
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first fifteen minutes of that time, Petitioner continued to lie
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fully dressed on his back, shoes on, with his arms folded behind
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his head, appearing relaxed.
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attempts and looked at the ceiling without moving.
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suspected Petitioner had been involved in Wagner’s death, and told
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one of the police officers who had come to the room, “You need to
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watch him.”
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Petitioner was responsible for Wagner’s death.
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Between
Wagner’s
Petitioner was
Robertson asked Petitioner what was wrong
He looked at Miller without saying anything.
Miller and other medical personnel tried
During the
Petitioner watched the resuscitation
Miller
Miller also told a nurse, Judith Boan, that he thought
A paramedic who was called around 8:00 or 8:30 pronounced
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Wagner dead, and concluded he had been dead for an hour or two.
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Wagner had died of asphyxia due to manual strangulation.
His face
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Petitioner had been found not guilty of an assault in 1999 by
reason of insanity, and was committed to the mental hospital.
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and neck were bruised, there was redness along the jaw and an
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abrasion on the chin, and blood had come from his mouth.
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B. Aftermath of Wagner’s Death and Investigation
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During the resuscitation, Boan asked Petitioner to leave the
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room.
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with her to a seclusion room without saying anything.
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stood at the door of the seclusion room to make sure Petitioner did
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not leave.
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been Wagner’s killer, Boan wanted to see Petitioner’s body to see
Accompanied by three uniformed officers, Petitioner went
An officer
When Miller told Boan he thought Petitioner might have
United States District Court
For the Northern District of California
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if he had any wounds.
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appeared to know his surroundings, and Boan did not see indications
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of any psychiatric problems.
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Petitioner’s shirt, sweat pants and shoes.
Boan told Petitioner to
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remove his outer clothing, and he did so.
Petitioner’s only injury
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was on his right hand where there was coagulated blood.
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Petitioner what had happened to his knuckle, and he did not
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respond.
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himself, and he said he had hit a wall the previous day.
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officer asked Petitioner how he had gotten blood on his knee, and
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he said he had fallen in the courtyard the previous day.
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Petitioner appeared to understand the questions, and answered them
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calmly and directly, although he had a “blank stare on his face.”
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Petitioner responded to her directions and
There were spots of blood on
Boan asked
One of the officers asked Petitioner how he had injured
The
Later that morning, Jon Crawford, a detective from the Napa
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County Sheriff’s Department, went with another detective to speak
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with Petitioner.
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mentally,” and to find out whether he would give a statement.
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saw that Petitioner’s hands were swollen, and that his right hand,
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particularly the knuckle area, was more swollen than the left.
They wanted to “see where [Petitioner] was
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They
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Crawford and other officers saw Petitioner again approximately two
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hours later.
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from his person, and asked if he would be willing to cooperate.
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Petitioner told them he would not cooperate and that he would fight
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the officers to stop them from collecting evidence.
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handcuffed Petitioner, and he struggled as they undressed him and
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collected evidence.
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killing Wagner.
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They told Petitioner they wanted to collect evidence
They told Petitioner he was under arrest for
DNA analysis revealed that the blood on Petitioner’s sweat
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United States District Court
For the Northern District of California
The officers
pants and shirt had come from Wagner.
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shoe was his own.
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C. Petitioner’s Prior Dealings with Wagner
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The blood on Petitioner’s
A patient at Napa State Hospital, Canada Coburn, testified
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that she had bought drugs from Petitioner many times. Petitioner
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sold marijuana cigarettes for ten dollars cash, or twenty dollars
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credit.
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marijuana cigarette from Petitioner without paying.
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Petitioner told Wagner he had “better pay up[,] fool.”
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days before Wagner was killed, Coburn spoke with Wagner on the
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telephone.
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could not pay Petitioner what he owed for the marijuana.
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then handed the telephone to Petitioner, who told Coburn that
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Wagner had “fucked up and that he needed to pay up,” and that
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something was going to happen to Wagner because he could not pay
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what he owed.
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had “made his own bed” and “had to lay in it.”
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that Wagner received the marijuana from Petitioner, Coburn had
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noticed Petitioner becoming more violent.
Several weeks before Wagner’s death, Wagner obtained a
At the time,
About three
Wagner told Coburn he feared for his life because he
Wagner
When Coburn protested, Petitioner told her Wagner
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Around the time
She thought he “wasn’t
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really thinking straight, he was really religious and really
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paranoid.”
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The day before Wagner died, Petitioner told his friend Rena
Hess, another patient at the hospital, that he was upset about not
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getting his money from Wagner and that Wagner “was going to be
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squashed that night if he didn’t get his money.”
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Petitioner told Hess something to the effect that he was going to
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“take care of the situation, that he was going to . . . do
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something to him, basically just kill him.”
In that conversation,
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United States District Court
For the Northern District of California
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Petitioner told Hess he was hearing voices.
When Hess spoke with
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Petitioner after he had been arrested, Petitioner initially told
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her he had killed Wagner, but the next day he indicated he had not
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been serious.
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having killed Wagner.
That evening,
At one point, Petitioner told her he felt bad about
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One or two days before Wagner’s death, Petitioner told another
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patient, Forrest Kendrid, that he was upset about Wagner not paying
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him back and that Wagner had to be “dealt with” (which Kendrid
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testified was slang for killing), or that Petitioner was “going to
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kill that punk mother fucker,” and that Wagner had to be made an
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example.
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refused, saying “it’s the principle of the thing.”
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D. Petitioner’s Mental State
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Kendrid offered to pay the debt himself, but Petitioner
At trial, Petitioner did not take the position that he had
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not killed Wagner.
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mental illness, he did not form the intent and mental state
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necessary for murder.
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evidence that he was required to take antipsychotic medication at
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the time of Wagner’s death.
Instead, Petitioner argued that because of his
In his defense, Petitioner presented
A quarterly evaluation of Petitioner
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in 2002 indicated that he was not ready to be released to the
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community because he was not totally in remission.
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residents testified that Petitioner had been in fights with two
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other patients, James Foster and Robertson, during April 2002, and
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one patient had observed that Petitioner had said odd things and
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appeared “tripped out” or “psychotic” in the days before those
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fights.
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death, Petitioner yelled about God in a manner the resident could
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not understand, behaved bizarrely and spoke in a disjointed
Other hospital
A resident testified that a few days before Wagner’s
United States District Court
For the Northern District of California
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fashion.
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up all night in his room, praying and pacing, and on at least one
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occasion, a nurse saw him appearing agitated and delusional.
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psychiatric social worker saw Petitioner in a seclusion room in
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five-point restraints on April 8, 2002, something that is usually
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done after an assault.
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him; Petitioner did not want to talk, but showed no signs of
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internal stimuli or delirium.
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April 24, 2002, Petitioner was under constant in-sight observation,
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which is used when a patient is a danger to himself or others.
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until Wagner’s death or the day before it, he was being observed at
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frequent intervals.
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Wagner’s death, Petitioner refused his medications.
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had asked him to cooperate in taking his medications, but had not
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forced him to do so.
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of April 29, 2002, to reduce the chances of his “cheeking” them, or
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failing to swallow them and throwing them out later.
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In the days before Wagner’s death, Petitioner would stay
A
She tried to discuss one of the fights with
Between approximately April 16 and
Up
On one or both of the two days preceding
Staff members
His medications had been ordered “crushed” as
Dr. Bruce Victor, a psychiatrist who testified as an expert
witness on Petitioner’s behalf, was of the opinion that Petitioner
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suffered from chronic paranoid schizophrenia, with polysubstance
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abuse and antisocial personality disorder, and that Petitioner’s
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condition may have been exacerbated by the use of methamphetamine.
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Victor also testified that medications are available to calm the
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symptoms of schizophrenia, and that withdrawal from the medications
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can cause agitation and sleeplessness.
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Petitioner’s April 2002 assaults on other patients, there was
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evidence that Petitioner had experienced command hallucinations, in
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one instance through a wall.
In both instances of
Petitioner had also been increasingly
United States District Court
For the Northern District of California
10
preoccupied with religion and had been praying fervently, in a way
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that was not characteristic of his behavior when his mental state
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was healthier.
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given him a psychotic reason for killing Wagner, and in fact had
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denied having killed him.
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not heard voices regarding Wagner.
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Victor also testified that Petitioner had never
Petitioner had also told Victor he had
Dr. Kevin Kappler, a psychologist at Napa State Hospital,
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testified for the prosecution.
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treatment team.
During 2002, Petitioner did not cooperate with his
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treatment plan.
Petitioner refused medications, refused to go to
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therapy groups and sometimes refused to meet with his treatment
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team.
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illness.
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request morphine instead.
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Wagner, Petitioner told Kappler he did not want to be in the
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hospital, that he was “a felon in between crimes” and that he would
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rather be in jail, where he could get better drugs.
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signs of delusions, and Petitioner did not tell him of any
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hallucinations.
Kappler was part of Petitioner’s
Kappler believed Petitioner might be feigning his mental
Petitioner would refuse his psychotropic medications and
Sometime in the months before killing
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Kappler saw no
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Dr. Madeline Andrew, a forensic psychiatrist, testified as an
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expert witness for the prosecution.
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diagnosis of Petitioner.
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“cheek” his medications, Andrew believed the medical records showed
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that Petitioner had generally been ingesting them.
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that crushing medications was effective in preventing a patient
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from cheeking medications.
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stops taking medication, it can take some time for the medication
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to be cleared out of the body, and symptoms may not recur for days,
She agreed with Victor’s
Although Petitioner had been trying to
She testified
She also testified that when a patient
United States District Court
For the Northern District of California
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weeks or even months.
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two or three doses of medication on May 1 and 2, 2002, Andrew did
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not believe the missed doses significantly affected the level of
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medication in his blood.
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Petitioner’s sleep patterns was voluntary, and that he preferred to
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sleep during the day and be awake at night.
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Although Petitioner seemed to have missed
She believed the disturbance in
Andrew also testified about the results of drug tests on
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Petitioner.
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cocaine.
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had a positive drug screen for phenobarbital, a barbiturate, in
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March 2002; a positive test for amphetamine, methamphetamine and
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phenobarbital April 9, 2002, after he had assaulted two other
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patients; and another positive test for phenobarbital on April 16,
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2002.
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that time until April 24, when he was reduced to fifteen-minute
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checks.
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minutes, and those observations were discontinued on May 1.
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screen on May 3, 2002, after Petitioner had been arrested for
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killing Wagner, was negative for all drugs.
In January 2002, Petitioner tested positive for
In February 2002, he tested negative for all drugs.
He
Petitioner was placed on constant in-sight observation from
On April 26, the observations were reduced to every thirty
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A
Although Petitioner
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was diagnosed in April with phenobarbital withdrawal, which can
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cause behavioral changes, agitation, anxiety, paranoia and
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delusions or hallucinations, Andrew concluded that symptoms of
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withdrawal had ended by April 24, 2002, at the latest.
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part on Petitioner’s physical symptoms during April, including
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elevated blood pressure and heart rate, Andrew believed that the
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symptoms Petitioner experienced in April, at the time he was put in
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restraints, were predominantly due to barbiturate withdrawal,
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rather than to his schizophrenia.
Based in
Petitioner’s records indicated
United States District Court
For the Northern District of California
10
to Andrew that his condition was generally improving up until the
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time of the killing.
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schizophrenia and antisocial personality disorder are capable of
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thinking rationally at times and of planning and carrying out
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crimes.
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E. Sanity Phase of Trial
Andrew testified that people with paranoid
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On September 8, 2005, the jury found Petitioner guilty of
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first degree murder, and the sanity phase of the trial ensued.
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evidence from the guilt phase was admitted in the sanity phase.
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Victor testified again for Petitioner.
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documents from Napa State Hospital, Atascadero State Hospital,
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California Medical Facility at Vacaville, the Napa County jail and
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the evaluations and reports of various doctors indicated that
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Petitioner had a history of paranoid schizophrenia, psychosis and
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polysubstance abuse, and that Petitioner had been arrested in 1999
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for an unprovoked attack committed in a psychotic state under the
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delusional belief that the victim intended to harm Petitioner’s
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family.
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an agitated way in a parking lot, and his psychiatric records
All
Victor’s review of
Before the 1999 attack, Petitioner had been seen pacing in
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indicated he had been hearing voices and responding to internal
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stimuli.
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late 2000, after Petitioner had been found not guilty by reason of
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insanity, the dosage of his antipsychotic medication was decreased,
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and his behavior and thought processes deteriorated, necessitating
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a re-increase in dosage.
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death, at a time when Petitioner was abusing drugs and his
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antipsychotic medications were interrupted, his behavior
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deteriorated, and he made unprovoked attacks on inmates.
Records from Atascadero State Hospital indicated that in
In April 2002, the month before Wagner’s
In one of
United States District Court
For the Northern District of California
10
those attacks, while in a psychotic state, Petitioner attacked a
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peer who was lying in bed.
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indicated that, at the time he killed Wagner, Petitioner had not
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taken any medication for a little over forty hours, and Victor was
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of the opinion that as a result, the level of medication that
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protected Petitioner from psychosis had dropped drastically.
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result, Petitioner’s delusions would have become worse, he would
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misperceive events, and his behavior would get out of control.
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addition, Petitioner had been using methamphetamine during April
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2002, and Victor testified that those drugs could still have been
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affecting Petitioner at the time of the murder.
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Petitioner’s expressed motivation to kill Wagner-–retribution for
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an unpaid drug debt-–to be consistent with insanity.
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testified that Petitioner’s explanation of how blood got onto his
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clothing did not contradict a conclusion that he was insane,
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explaining that people in psychotic states can come up with
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explanations that they believe are rational.
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Petitioner’s later inconsistent accounts of events did not indicate
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that Petitioner was not psychotic at the time he killed Wagner, and
Victor’s review of Petitioner’s records
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As a
In
Victor considered
Victor also
In Victor’s opinion,
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in fact it was likely that his accounts would become inconsistent
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as he had more aggressive antipsychotic treatment.
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that people with paranoid schizophrenia often have a “flat affect,”
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as Petitioner did after Wagner was killed.
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saw Petitioner on April 24, 2002, had noted that Petitioner was not
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suffering hallucinations or delusions, in the ensuing days
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Petitioner had talked about his medication being poisoned, had been
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religiously preoccupied and had been pacing in an agitated manner
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the night before the murder, indicating decreased control over his
Victor noted
Although a doctor who
United States District Court
For the Northern District of California
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paranoia.
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understood the nature and quality of his acts when he killed
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Wagner, but that he was probably hallucinating and delusional at
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the time he did so, to the extent that he did not know the
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difference between right and wrong.
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Victor was of the opinion that Petitioner most likely
Victor testified on cross-examination that Petitioner had told
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him in May 2005--at a time he showed signs of psychosis--that
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everyone had a right to live, and that at the time Petitioner
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understood that it was morally wrong to take another person’s life.
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In the interview, Petitioner told Victor that he did not have any
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idea how Wagner had died, he did not give a psychotic explanation
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for the killing and he said he had never been a recreational drug
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user.
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Dr. Gregory Sokolov, a court-appointed psychiatrist, testified
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for the prosecution.
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he had used marijuana, methamphetamine and crack cocaine at Napa
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State Hospital, and that he had made $200 to $300 a day selling
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items to other patients.
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up to the killing, he was intoxicated, “drugged out” and not “in
In a 2005 interview, Petitioner told Sokolov
Petitioner said that in the days leading
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his right mind,” but denied having killed Wagner.
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with the diagnoses Petitioner had received of paranoid
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schizophrenia, polysubstance dependence and antisocial personality
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disorder.
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not psychotic, in which they do not have acute mental symptoms.
Sokolov agreed
People with schizophrenia have periods in which they are
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Sokolov reviewed a test for malingering that Petitioner had
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taken in September 2002, and concluded Petitioner was faking his
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psychotic symptoms.
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one doctor in the jail in 2003 had also concluded Petitioner was
Two other court-appointed psychologists and
United States District Court
For the Northern District of California
10
malingering, or exaggerating his psychiatric symptoms.
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not think Petitioner was delusional when he killed Wagner.
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based his opinion on the fact that two days before the murder,
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Petitioner’s own psychiatrist noted that Petitioner was doing well
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and having no behavioral problems and that two days after the
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murder, jail workers had said Petitioner was “oriented [and]
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manipulative,” with no mental health problems.
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interview with Petitioner, Petitioner did not show any delusional
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beliefs or paranoia toward Wagner, and Petitioner told Sokolov he
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was not hearing voices that night and had slept through the night.
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Sokolov did not believe pacing the floor the night before the
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murder was a psychotic symptom.
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right from wrong at the time of the killing, based on the facts
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that Petitioner had given a false explanation for the blood on his
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clothing, he had not been having delusions and could therefore
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distinguish right from wrong and he had given conflicting
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explanations of events, also indicating that he was not operating
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under delusional beliefs and that he understood what he had done
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was wrong.
Sokolov did
Sokolov
In Sokolov’s
Sokolov believed Petitioner knew
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Dr. Stephen Donoviel, a psychologist who had been appointed by
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the court to evaluate Petitioner’s sanity, also testified as an
3
expert witness for the prosecution.
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in 2005, Petitioner told Donoviel he knew nothing about the murder.
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According to Petitioner, he had gone to sleep and “woke up” when he
6
was being taken down the hall.
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Wagner was his best friend at the hospital, denied having
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threatened to harm Wagner because of the drug debt and denied
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selling drugs.
When he interviewed Petitioner
Petitioner told Donoviel that
Petitioner said he had attacked two other patients
United States District Court
For the Northern District of California
10
in April 2002 to “teach them a lesson” because they had been “bad
11
mouthing his business,” which he said involved selling candy and
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coffee.
Petitioner told Donoviel he was as “mean as a rattle
13
snake.”
Petitioner also said that he knew that harming or killing
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someone was morally, legally and religiously wrong.
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review of Petitioner’s records showed that his physical and mental
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condition improved over the course of April 2002.
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Petitioner had begun treatment for an abscess in his arm, which was
18
the result of using intravenous drugs.
19
concerned because Petitioner had not been eating, and petitioned to
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force feed him.
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because at that time Petitioner was thinking rationally.
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April, there were entries in Petitioner’s records indicating he was
23
confused, disoriented and delusional, but those symptoms abated
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over the course of the month, and Petitioner’s condition had
25
improved by the end of the month.
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entries indicated that Petitioner had been heard talking on the
27
phone in a cheerful voice and he was “[c]learly oriented,” and
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Donoviel concluded he was no longer confused.
Donoviel’s
In late March,
The medical staff was
The request was denied in the middle of April,
13
Early in
Near the end of that time,
In Donoviel’s
1
opinion, Petitioner understood the nature and quality of his acts
2
and could distinguish right from wrong when he killed Wagner.
3
On September 16, 2005, the jury found Petitioner was sane when
4
he killed Wagner.
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twenty-five years to life in state prison.
6
Petitioner appealed his conviction to the California Court of
7
Appeal.
8
the judgment of conviction.
9
a petition for review in the California Supreme Court, which was
On October 28, 2005, Petitioner was sentenced to
On December 5, 2007, the state appellate court affirmed
On January 15, 2008, Petitioner filed
10
United States District Court
For the Northern District of California
On October 6, 2006,
denied on March 26, 2008.
11
habeas petition on September 17, 2008.
12
Petitioner filed the instant federal
LEGAL STANDARD
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27
28
A federal court may entertain a habeas petition from a state
prisoner “only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States.”
U.S.C. § 2254(a).
28
Under the Antiterrorism and Effective Death
Penalty Act (AEDPA), a district court may not grant a petition
challenging a state conviction or sentence on the basis of a claim
that was reviewed on the merits in state court unless the state
court’s adjudication of the claim: “(1) resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
§ 2254(d).
28 U.S.C.
A decision is contrary to clearly established federal
law if it fails to apply the correct controlling authority, or if
it applies the controlling authority to a case involving facts
14
1
materially indistinguishable from those in a controlling case, but
2
nonetheless reaches a different result.
3
1062, 1067 (9th Cir. 2003).
4
application of federal law if the state court identifies the
5
correct legal principle but unreasonably applies it to the facts of
6
the prisoner’s case.
7
Clark v. Murphy, 331 F.3d
A decision is an unreasonable
Id.
The only definitive source of clearly established federal law
8
under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as
9
of the time of the relevant state court decision.
United States District Court
For the Northern District of California
10
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14
15
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18
Williams v.
Taylor, 529 U.S. 362, 412 (2000).
To determine whether the state court’s decision is contrary
to, or involved an unreasonable application of, clearly established
law, a federal court looks to the decision of the highest state
court that addressed the merits of a petitioner’s claim in a
reasoned decision.
Cir. 2000).
LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th
In the present case, the only state court to address
the merits of Petitioner’s claims is the California appellate court
on direct review.
19
DISCUSSION
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21
Petitioner raises four claims.
First, he alleges that the
22
trial court erred by admitting statements he made to officers at
23
the mental hospital because the statements were made in violation
24
of Petitioner’s rights under Miranda v. Arizona, 384 U.S. 436
25
(1966).
26
not sua sponte ordering a hearing on Petitioner’s competence to
27
stand trial.
28
impermissibly shifted the burden of proof in instructing the jury
Second, Petitioner claims that the trial court erred by
Third, Petitioner asserts that the trial court
15
1
regarding the effect of Petitioner’s mental disorder on the
2
requisite mental state for murder.
3
the trial court committed instructional error during the sanity
4
phase of his trial.
5
I.
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8
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United States District Court
For the Northern District of California
10
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Finally, Petitioner claims that
Miranda Violation
Petitioner claims that his conviction was based on “non-
Mirandized” statements he gave to officials at Napa State Hospital
and that it was error for the trial court to admit these
statements.
Petitioner does not specify what statements should
have been excluded from evidence.
A review of Petitioner’s opening
brief on appeal, however, identifies two statements.
Ex. C at 10.
First, when one of the investigating officers asked Petitioner how
Petitioner had cut his hand, Petitioner stated that he had punched
a wall in the courtyard the day before.
Id.
Second, when the
officer asked Petitioner how Petitioner had gotten blood on his
knee, Petitioner stated that he had fallen down in the courtyard.
Id.
18
19
20
21
22
23
24
25
26
27
Petitioner claims that these two statements, which were given
without a Miranda warning, contradicted his guilt-phase defense
that he was acting under a schizophrenic episode, because a jury
could have inferred that the explanations showed a consciousness of
guilt.
Id. at 29.
Further, Petitioner asserts the statements
contradicted his insanity defense because Dr. Sokolov used the
statements to opine that Petitioner knew right from wrong insofar
as he knew enough to come up with an excuse to hide his behavior.
Id. at 29-30.
28
16
1
A.
State Appellate Court Opinion Addressing Petitioner’s
Claim
2
The state appellate court did not decide whether Petitioner’s
3
4
Miranda rights were violated.
Instead the court rejected the claim
5
on the grounds that admission of the statements was harmless beyond
6
a reasonable doubt under the federal prejudice standard.
7
Gore, 2007 WL 4248859 at *9-11 (citing Arizona v. Fulminante, 499
8
U.S. 279, 313 (1991)).
9
B.
People v.
Analysis of Petitioner’s Claim Under AEDPA
United States District Court
For the Northern District of California
10
Miranda requires that a person subjected to custodial
11
interrogation be advised that he has the right to remain silent,
12
that statements made can be used against him, that he has the right
13
to counsel and that he has the right to have counsel appointed.
14
See Miranda, 384 U.S. at 444.
15
custodial interrogation, which occurs whenever law enforcement
16
officers question a person after taking that person into custody or
17
otherwise significantly deprive a person of freedom of action.
18
Miranda protections are triggered “only where there has been such a
19
restriction on a person’s freedom as to render him ‘in custody.’”
20
Stansbury v. California, 511 U.S. 318, 322 (1994) (citing Oregon v.
21
Mathiason, 429 U.S. 492, 495 (1977)).
22
“a reasonable person [would] have felt he or she was not at liberty
23
to terminate the interrogation and leave,” as judged by the
24
totality of the circumstances.
25
112 (1995).
26
statements in violation of Miranda “had a substantial and injurious
27
effect or influence in determining the . . . verdict.”
These warnings must precede any
Id.
“[I]n custody” requires that
Thompson v. Keohane, 516 U.S. 99,
Habeas relief should be granted if the admission of
28
17
Juan H. v.
1
Allen, 408 F.3d 1262, 1271 n.9 (9th Cir. 2005)(quoting Brecht v.
2
Abrahamson, 507 U.S. 619, 637 (1993)).
3
The Court need not decide whether Petitioner’s Miranda rights
4
were violated because Petitioner has not shown that the statements
5
had a substantial and injurious effect on the jury’s verdict.
6
noted by the appellate court, in both phases of Petitioner’s trial,
7
evidence of guilt was overwhelming, and the two statements
8
regarding Petitioner’s injuries were only a small part of the
9
prosecution’s case.
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
As
While Petitioner is correct that Dr. Sokolov used the
statements to opine that Petitioner knew right from wrong (Ex. A,
vol. 1 at 188), there was plentiful other evidence of Petitioner’s
guilt and state of mind.
blood on his clothing.
For example, Petitioner had Wagner’s
Ex. B at 3850, 3884, 4388-90.
In the days
leading up to the murder, Petitioner had told numerous people that
he was going to harm Wagner due to the debt Wagner owed Petitioner.
Id. at 3899, 3911-13, 3916, 4059-61, 4305-06.
Petitioner had
stated on the evening before Wagner’s death that he would kill
Wagner.
Id. at 4305-08, 4312.
Testing showed that Petitioner’s
blood did not contain any drugs after or during the attack on
Wagner.
Id. at 4473-74.
The evidence also showed that Petitioner
was calm and cooperative after Wagner was discovered dead and that
he had an apparent understanding of his surroundings and the
staff’s directions.
Id. at 3689, 3851-53, 3866, 3868-73, 3888,
3890-91, 3923-24, 3956-58, 4513-14, 4522, 4525.
Petitioner
responded appropriately to questions and commands and did not
appear to have any psychotic problems at the time.
Id.
Dr.
Sokolov noted the absence of reported or observed delusions in the
18
1
days before and after the event.
2
187.
3
explanations of the events, which is uncharacteristic of someone
4
operating under a delusional conviction.
5
vol. 1 at 188.
6
Petitioner’s mental state had improved by the end of April 2002.
7
Ex. A, vol. 1 at 185-87; Ex. A, vol. 3 at 52-53.
8
treating psychologist opined that Petitioner was faking mental
9
illness and testified that Petitioner even admitted to malingering.
Ex. B at 6714; Ex. A, vol. 1 at
Dr. Sokolov also noted that Petitioner made changing
Ex. B at 6708-09; Ex. A,
The evidence also included reports showing that
Petitioner’s
United States District Court
For the Northern District of California
10
Ex. B at 5293-96.
11
Petitioner was malingering.
12
that Petitioner was not showing withdrawal symptoms at the time of
13
the killing and that Petitioner was being adequately treated for
14
his psychiatric problems.
15
Finally, Petitioner himself reported that he understood right from
16
wrong and knew that it was morally, legally and religiously wrong
17
to kill another person.
18
against Petitioner, the court of appeal reasonably found that there
19
was no resulting prejudice to Petitioner from the admission of the
20
two statements.
21
Other court-appointed psychologists agreed that
Id. at 6705-06.
Another expert opined
Id. at 5329-31, 5336-37, 5353, 5355.
Id. at 5824-25.
Based on the strong case
Accordingly, Petitioner has not demonstrated a reasonable
22
probability that the result of the proceeding would have been
23
different had the statements been excluded.
24
rejection of this claim was neither contrary to, nor an
25
unreasonable application of, federal law.
26
//
27
28
//
19
The state court’s
1
2
II.
Competency Hearing
Petitioner claims he was denied due process when the trial
3
court failed to order a hearing sua sponte on Petitioner’s
4
competency to stand trial.
5
expressed doubt in Petitioner’s competency under Cal. Penal Code
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
§ 1368.3
Ex. B at 303-04.
In August 2002, defense counsel
The trial court appointed two
psychologists to examine Petitioner.
Id.; Ex. A, vol. 1 at 21.
Both concluded that Petitioner was feigning the nature or degree of
his psychotic symptoms.
Ex. A, vol. 3 at 14-29; Ex. B at 452.
At
the request of defense counsel, the trial judge then appointed a
psychiatrist to examine Petitioner.
355-56.
Ex. A, vol. 1 at 26; Ex. B at
The psychiatrist concluded that Petitioner was able to
understand the charges against him and assist counsel in presenting
a rational defense.
Ex. A, vol. 3 at 31-35.
In January 2003, the
trial court found Petitioner competent to stand trial based on the
three expert evaluations.
Ex. A, vol. 1 at 42; Ex. B at 555.
17
18
19
20
21
22
On June 28, 2004, Petitioner personally presented a written
motion for appointment of new counsel, which was granted based on a
breakdown in the relationship between Petitioner and defense
counsel.
Ex. A, vol. 1 at 107; Ex. B at 1931-32.
appointed new defense counsel.
The trial court
Id.
23
24
25
26
27
28
3
Cal. Penal Code § 1368(b) states in relevant part:
If counsel informs the court that he or she
believes the defendant is or may be mentally
incompetent, the court shall order that the
question of the defendant’s mental competence is
to be determined in a hearing.
20
1
Subsequently, in April 2005, Napa County Counsel applied ex
2
parte for an order transferring Petitioner from the Napa County
3
jail to the California Medical Facility in Vacaville (CMF).
4
vol. 1 at 143-44.
5
injured himself by hitting his head against a steel bunk and
6
running headlong into a wall.
7
correctional officers and was refusing to take his psychotropic
8
medications.
9
and medicate Petitioner more effectively than the county jail
Ex. A,
The application stated that Petitioner had
Id.
Id.
Petitioner had also assaulted
County counsel argued that CMF could supervise
United States District Court
For the Northern District of California
10
could.
11
parte application and notified the court that Petitioner was
12
requesting medical attention.
13
trial court granted the order, and Petitioner was transferred to
14
CMF.
15
Id.
Petitioner’s new counsel submitted the issue on the ex
Ex. B at 2402.
On May 2, 2005, the
Ex. A, vol. 1 at 147-49.
At a hearing on June 1, 2005, the trial court considered where
16
Petitioner should be housed during trial.
17
Ex. B at 2555-64.
18
Petitioner outside of trial hours each day and told the court that
19
Petitioner “[did] well when he’s taking his meds and when he’s
20
properly medicated.”
21
court to continue housing Petitioner at CMF where Petitioner had
22
resumed taking his medication.
23
continued Petitioner’s housing at CMF but ordered that he be
24
brought to court early on trial mornings.
25
Ex. B at 2563-64.
26
27
28
Ex. A, vol. 1 at 160;
Defense counsel expressed a need to confer with
Ex. B at 2558.
County counsel urged the
Id. at 2560.
The trial court
Ex. A, vol. 1 at 161-62;
At the same hearing, Petitioner personally entered a plea of
not guilty and not guilty by reason of insanity.
160; Ex. B at 2569.
Ex. A, vol. 1 at
The prosecution then asked whether defense
21
1
counsel was raising a doubt about Petitioner’s competence to stand
2
trial.
3
The trial judge stated that her review of Dr. Victor’s report did
4
not raise those issue in her mind and that nothing about
5
Petitioner’s conduct in court raised a doubt.
6
After being offered an opportunity to comment further on
7
Petitioner’s competency, defense counsel stated, “I don’t have
8
doubt at this time.”
9
Ex. B at 2577.
Defense counsel responded, “I’m not.”
Id.
Id. at 2577-78.
Id. at 2578.
Also on June 1, 2005, the trial court appointed Dr. Sokolov
United States District Court
For the Northern District of California
10
and Dr. Donoviel under Cal. Penal Code § 1027, which requires the
11
trial court to appoint experts to evaluate a plea of insanity.
12
A, vol. 1 at 160; Ex. B at 2575.
13
Petitioner and issued reports in June 2005.
14
182-89; Ex. A, vol. 3 at 42-57.
15
in connection with Petitioner’s plea and not with regard to
16
Petitioner’s competence to stand trial, neither expert suggested
17
that Petitioner was not competent to be tried.
18
notes that both experts opined that Petitioner was sane at the time
19
of the offense.
20
Donoviel indicated that Petitioner cooperated with the interview,
21
was “fully alert and correctly oriented to time, place, person and
22
situation,” showed a good sense of humor and appropriate range of
23
emotions and did not appear to be preoccupied or responding to
24
internal stimuli.
25
that Petitioner cooperated with the interview and said he was
26
pleading insanity on his lawyer’s advice.
27
184.
Ex.
Both doctors interviewed
Ex. A, vol. 1 at
While these experts were appointed
Id.
The Court also
Ex. A, vol. 1 at 187-89; Ex. A, vol. 3 at 57.
Ex. A, vol. 3 at 54.
28
22
Dr.
Dr. Sokolov also indicated
Ex. A, vol. 1 at 182,
1
In July 2005, county counsel informed the trial court that the
2
treating psychiatrist at CMF had discharged Petitioner from the
3
acute psychiatric ward.
4
ordered Petitioner returned to county jail.
5
91; Ex. B at 2705-06.
6
Ex. A, vol. 1 at 208.
7
Ex. A, vol. 1 at 176-81.
The trial court
Ex. A, vol. 1 at 190-
Jury selection began on August 22, 2005.
Petitioner claims that his April 2005 conduct-–resulting in
8
his transfer to CMF-–presented evidence of a change in his
9
psychiatric condition, such that the trial court should have
United States District Court
For the Northern District of California
10
reconsidered its earlier competency determination and sua sponte
11
ordered a competency hearing.
12
13
14
A.
State Appellate Court Opinion Addressing Petitioner’s
Claim
The state appellate court analyzed Petitioner’s claim under
15
Cal. Penal Code § 1368, which requires the court to order a
16
competency hearing if “a doubt arises in the mind of the judge as
17
to the mental competence of the defendant” or “[i]f counsel informs
18
the court that he or she believes the defendant is or may be
19
mentally incompetent.”
20
claim, noting that Petitioner’s own counsel expressed that he did
21
not doubt Petitioner’s competence and noting that Petitioner was
22
again taking his medications by the time of trial.
23
2007 WL 4248859 at *9.
24
in the reports of the appointed experts nor in the report of the
25
defense expert indicated that Petitioner would be incompetent when
26
properly medicated.
27
suggesting Petitioner’s inability to understand the proceedings
28
against him or to consult rationally with his lawyer.
The appellate court rejected Petitioner’s
People v. Gore,
The appellate court also noted that nothing
Id.
The court found no substantial evidence
23
Id.
1
B.
Analysis of Petitioner’s Claim Under AEDPA
2
The test for competence to stand trial is whether the
3
defendant demonstrates the ability “‘to consult with his lawyer
4
with a reasonable degree of rational understanding’ and has ‘a
5
rational as well as factual understanding of the proceedings
6
against him.’”
7
Dusky v. United States, 362 U.S. 402, 402 (1960)).
8
requires a trial court to order a psychiatric evaluation or conduct
9
a competency hearing sua sponte if the court has a good faith doubt
Godinez v. Moran, 509 U.S. 389, 396 (1993)(quoting
Due process
United States District Court
For the Northern District of California
10
concerning the defendant’s competence.
11
375, 385 (1966).
12
arises if “‘a reasonable judge, situated as was the trial court
13
judge whose failure to conduct an evidentiary hearing is being
14
reviewed, should have experienced doubt with respect to competency
15
to stand trial.’”
16
2010) (quoting de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir.
17
1976)).
18
conducted a competency hearing, we may consider only the evidence
19
that was before the trial judge.”
20
1112, 1119 (9th Cir. 2008).
21
irrational behavior, his demeanor at trial, and any prior medical
22
opinion on competence to stand trial are all relevant in
23
determining whether further inquiry is required,’ and ‘one of these
24
factors standing alone may, in some circumstances, be sufficient.’”
25
Maxwell, 606 F.3d at 568 (quoting Drope v. Missouri, 420 U.S. 162,
26
180 (1975)).
27
28
Pate v. Robinson, 383 U.S.
A good faith doubt about a defendant’s competence
Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir.
“In reviewing whether a state trial judge should have
McMurtrey v. Ryan, 539 F.3d
“‘[E]vidence of a defendant’s
Here, it is undisputed that Petitioner had a history of
psychiatric disorders, including court-ordered time at a state
24
1
mental hospital.
2
Petitioner was previously found not guilty by reason of insanity
3
for a 1999 assault.
4
n.2.
5
Petitioner incompetent to stand trial.
6
opinions gathered for Petitioner’s 2005 trial on the underlying
7
offense, including that of the defense expert, suggested that
8
Petitioner was incompetent.
9
at 36-41, 42-57.
Ex. B at 6604-17.
Further, it is undisputed that
Id.; People v. Gore, 2007 WL 4248859 at *1,
The record shows no prior medical opinion, however, finding
And none of the expert
Ex. A, vol. 1 at 182-89; Ex. A, vol. 3
The three psychological and psychiatric reports
United States District Court
For the Northern District of California
10
ordered by the trial court in 2002 all concluded that Petitioner
11
was competent.
12
Dr. Donoviel and Dr. Sokolov, issued two months before trial,
13
showed that Petitioner was cooperative and capable of understanding
14
their interview questions.
15
182, 184.
16
the offense.
17
Further, defense counsel denied having any doubt as to Petitioner’s
18
ability to stand trial and stated that Petitioner did well when
19
properly medicated.
20
psychiatrist reported that Petitioner was back on his medication in
21
July 2005.
22
she also did not notice anything out of the ordinary.
23
2577-78.
24
throughout the proceedings, the expert reports and the statements
25
of county counsel and defense counsel were the only evidence
26
considered by the trial court and, therefore, the only evidence
27
this Court is to consider in determining whether the trial court
28
should have ordered a competency hearing.
Ex. A, vol. 3 at 14-29, 31-35.
Later reports by
Ex. A, vol. 3 at 54; Ex. A, vol. 1 at
And both opined that Petitioner was sane at the time of
Ex. A, vol. 1 at 187-89; Ex. A, vol. 3 at 57.
Ex. B at 2577-77.
Ex. A, vol. 1 at 180-81.
The CMF treating
The trial judge noted that
Ex. B at
It appears that the Petitioner’s demeanor and behavior
25
See McMurtrey, 539 F.3d
1
at 1119; Amaya-Ruiz v. Stewart, 121 F.3d 486, 493 (9th Cir. 1997).
2
A review of this evidence shows no reason why the trial court
3
should have had a good faith doubt regarding Petitioner’s
4
competence.
5
See Maxwell, 606 F.3d at 568.
The Ninth Circuit issued its recent opinion in Maxwell v. Roe,
606 F.3d 561, 568 (9th Cir. 2010) subsequent to the briefing in
7
this case.
8
where the trial court failed to conduct a second competency hearing
9
despite substantial evidence that the petitioner’s psychiatric
10
United States District Court
For the Northern District of California
6
condition had worsened following an initial competency finding.
11
This Court has considered the opinion and finds it distinguishable
12
from the present case.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Maxwell granted federal habeas relief to a petitioner
In Maxwell, the petitioner was ordered to undergo a competency
determination after defense counsel expressed doubt about his
ability to stand trial.
Id. at 564.
Four of five psychiatrists
concluded that Maxwell was malingering, or feigning a psychosis,
while the fifth concluded that Maxwell was indeed incompetent to
stand trial.
Id. at 565.
The trial judge subsequently found
Maxwell competent and reinstated criminal proceedings.
Id.
By the
time trial commenced thirteen months later, Maxwell’s behavior had
become uncontrollable, and defense counsel repeatedly alerted the
court that Maxwell’s condition was worsening and that communication
with Maxwell was severely strained.
Id. at 565.
During pretrial
proceedings, Maxwell made noises and blurted out obscenities.
at 569.
He refused to take his medication and had assaulted
another inmate with a knife.
Id.
Following one physical and
verbal outburst in the courtroom, the trial judge found that
Maxwell posed a danger and had him removed.
26
Id. at 570.
As a
Id.
1
result, the trial proceeded in Maxwell’s absence.
2
Halfway through the trial, Maxwell attempted suicide with a razor
3
blade and was placed by hospital staff on a seventy-two hour
4
“psychiatric hold” or detention that later was extended to a two-
5
week hold.
6
light of the psychiatric holds, “[n]o reasonable judge . . . could
7
have proceeded with the trial without doubting Maxwell’s competency
8
to stand trial.”
9
Id. at 570-71.
Id. at 565.
The Ninth Circuit concluded that, in
Id. at 573.
The Ninth Circuit also observed that, had the trial court
United States District Court
For the Northern District of California
10
conducted an additional competency hearing, it “would have
11
discovered further information suggesting Maxwell’s incompetence,”
12
specifically the reports from the psychiatric holds explicitly
13
finding that Maxwell was “actively psychotic” and that he had been
14
“involuntary [sic] administered heavy doses of [an] antipsychotic
15
drug.”
16
first relied upon by the trial judge, which concluded Maxwell had
17
been malingering, was “thirteen months old,” “was itself based on
18
aging psychiatric evaluations that were, by the time of Maxwell’s
19
trial, eighteen months old” and that Maxwell’s condition had
20
deteriorated significantly in the intervening time.
21
22
23
24
25
26
27
28
Id.
Additionally the appellate court noted that the report
Id. at 575.
Here, in contrast, defense counsel did not voice continuing
concern about Petitioner.
While the failure of a defendant or his
attorney to request a competency hearing is not a factor in
determining whether there is a good faith doubt in the defendant’s
competency, Maxwell, 606 F.3d at 574, this was not a “failure to
request” case.
As discussed above, the trial judge specifically
inquired of defense counsel whether there was any need for a second
competency determination, and defense counsel specifically stated
27
1
that he did not doubt Petitioner’s competence to stand trial.
2
Williams v. Woodford, 384 F.3d 567, 607-610 (9th Cir. 2004)
3
(affording significant weight to defense counsel’s firm belief that
4
defendant was competent and, in the absence of “persuasive”
5
evidence to the contrary, concluding that defendant did not
6
establish a violation of his right not to be tried and convicted
7
while incompetent); see also United States v. Clark, 617 F.2d 180,
8
186 n.11 (9th Cir. 1980) (“The fact that [the defendant’s] attorney
9
apparently considered him competent is significant evidence that he
United States District Court
For the Northern District of California
10
11
See
was competent.”).
Further, as discussed above, defense counsel also informed the
12
trial judge that Petitioner did well when taking his medication
13
(Ex. B at 2558), and the record shows that Petitioner was back on
14
medication at the time of his trial and well enough to be returned
15
to county jail.
16
that defense counsel was communicating directly with Petitioner
17
during trial.
18
633 F.3d 852, 860 (2011) (defense counsel, while agreeing that
19
client was difficult to control, informed the court that they could
20
ensure his competence by taking measures such as getting him proper
21
medication or communicating with him directly).
22
appears from the record that Petitioner was coherent in his brief
23
colloquies with the court (Ex. B at 2568-69, 2617), and did not
24
disrupt proceedings.
25
nothing in Petitioner’s demeanor raised a doubt to the court.
26
B at 2577-78.
27
trial court to conclude there was not enough evidence before it to
28
raise a doubt about defendant’s competence where defendant was
Ex. A, vol. 1 at 176-81.
Ex. B at 2558-59, 2563-64.
The record also shows
See Stanley v. Culler,
Finally, it
The trial judge noted at one point that
Ex.
See Stanley, 633 F.3d at 861 (not unreasonable for
28
1
coherent in his testimony and colloquies with the court, and state
2
court judges indicated his demeanor in courtroom did not raise a
3
doubt about his competency).
4
Nor does the record suggest there were later findings by
5
treatment staff that would have permitted the inference Petitioner
6
was incompetent, in contrast to Maxwell.
7
later evaluations found that Petitioner was cooperative and
8
communicative and opined that Petitioner was sane at the time of
9
the offense.
Indeed, as noted above,
And Petitioner’s discharge papers from CMF described
United States District Court
For the Northern District of California
10
him as “calm, cooperative, pleasant” and reported that he “denie[d]
11
hallucinations or suicidal intent.”
12
evaluation presented by Petitioner’s own psychological expert
13
nowhere suggested that Petitioner would be unable to stand trial.
14
There is nothing in the record to show that Petitioner could not
15
assist counsel or understand the proceedings against him at the
16
time of trial.
17
does not mandate federal habeas relief here.
18
of the highly deferential standard this Court must give to the
19
state court’s factual finding, see Stanley, 633 F.3d at 859, the
20
state court’s decision rejecting this claim was not contrary to, or
21
an unreasonable application of, clearly established federal law.
22
28 U.S.C. § 2254(d).
23
Ex. A, vol. 1 at 181.
Godinez, 509 U.S. at 396.
The
Accordingly, Maxwell
Especially in light
III. Jury Instruction On Effect Of Mental Disorder On Mental State
24
25
26
27
28
Petitioner claims that the trial court erred in its
instruction to the jury on the mental state required for first
degree murder.
Specifically, the trial court instructed the jury
with a modified version of CALJIC No. 4.21.1 as follows:
29
1
It is the general rule that no act committed by
a person with a mental disorder is less
criminal by reason of that condition. Thus in
the crime of first degree murder as charged in
Count One, or the crime of second degree
murder, which is a lesser thereto, the fact
that the defendant had a mental disorder is not
a defense and does not relieve defendant of
responsibility for the crime. However there is
an exception to this general rule, namely where
a specific intent or mental state is an
essential element of the crime. In that event
you should consider the defendant’s mental
disorder in deciding whether the defendant
possessed the required specific intent or
mental state at the time of the commission of
the alleged crime. [¶] Thus in the crime of
first degree murder charged in Count One or the
lesser crime of second degree murder, a
necessary element is the existence in the mind
of the defendant of a certain specific intent
or mental state which is included in the
definition of the crime set forth elsewhere in
these instructions. If the evidence shows that
a defendant had a mental disorder at the time
of the alleged crime you should consider that
fact in deciding whether or not defendant had
the required specific intent or mental state.
If from all the evidence you have a reasonable
doubt whether the defendant had a required
specific intent or mental state you must find
that the defendant did not have that specific
intent or mental state.
2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
Ex. A, vol. 2 at 430; Ex. B at 5551-52.
19
Petitioner claims that this instruction impermissibly shifted
20
21
22
23
the burden to the defense to prove that Petitioner did not harbor
the requisite mental state for first degree murder.
A.
State Appellate Court Opinion Addressing Petitioner’s
Claim
24
The state court of appeal rejected Petitioner’s claim, finding
25
that nothing in the instruction directed the jury to find that
26
Petitioner acted with the intent to kill.
People v. Gore, 2007 WL
27
4248859 at *12.
To the contrary, the jury was instructed that if
28
it had a reasonable doubt whether Petitioner had the required
30
1
mental state, it must find for the defense.
2
court also noted that the instructions as a whole properly
3
instructed the jury that the prosecution had the burden of proof on
4
each fact necessary to establish guilt.
5
6
7
8
9
United States District Court
For the Northern District of California
10
11
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B.
Id.
The appellate
Id.
Analysis of Petitioner’s Claim Under AEDPA
A challenge to a jury instruction solely as an error under
state law does not state a claim cognizable in federal habeas
corpus proceedings.
(1991).
See Estelle v. McGuire, 502 U.S. 62, 71-72
To obtain federal collateral relief for errors in the jury
charge, a petitioner must show that the ailing instruction by
itself so infected the entire trial that the resulting conviction
violates due process.
Id. at 72.
The instruction may not be
judged in artificial isolation, but must be considered in the
context of the instructions as a whole and the trial record.
Id.
15
16
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18
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20
21
22
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24
25
26
27
28
Petitioner does not show how the challenged instruction so
infected his trial.
The instruction did not require the jury to
find that Petitioner acted with specific intent to kill.
Rather
the instruction directed the jurors to find that he did not have
such intent if the jury had a reasonable doubt.
Petitioner simply
does not show how the instruction shifted, or in any way lessened,
the prosecution’s burden to prove Petitioner guilty beyond a
reasonable doubt as to each element of the crime, after taking his
mental disorder into consideration.
Looking at the record as a
whole, the instructions given adequately placed the burden on the
prosecution.
Accordingly, the state court’s denial of this claim
was not contrary to, or an unreasonable application of, established
federal authority.
31
1
//
2
3
IV.
Jury Instruction During Sanity Phase
4
5
6
7
8
9
United States District Court
For the Northern District of California
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24
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26
Petitioner claims the trial court committed instructional
error in the sanity phase of his trial.
Specifically, Petitioner
challenges the trial court’s use of an instruction requiring
Petitioner to prove legal insanity by a preponderance of the
evidence.
While not specified in his petition, Petitioner’s
argument on direct appeal was that his prior adjudication of legal
insanity in 1999 should have been presumed to have continued.
C at 40-42, 55-56.
Ex.
While also not stated in the instant petition,
Petitioner raised a second argument on direct appeal challenging
the trial court’s instruction to the jury on the use of
circumstantial evidence.
Id. at 57-59.
Specifically, the trial
court instructed the jury as follows:
Each fact which is essential to complete a set
of circumstances necessary to establish the
defendant’s insanity must be proved by a
preponderance of the evidence. In other words,
before an inference essential to establish
insanity may be found to have been proved by a
preponderance of the evidence, each fact or
circumstance on which the inference necessarily
rests must be proved by a preponderance of the
evidence. [¶] Also if the circumstantial
evidence permits two reasonable
interpretations, one which points to the
defendant’s insanity, the other to his sanity,
you must adopt the interpretation that points
to the defendant’s sanity and reject the
interpretation that points to his insanity.
If, on the other hand, one interpretation of
the evidence appears to you to be reasonable,
the other interpretation to be unreasonable,
you must accept the reasonable interpretation
and reject the unreasonable.
27
28
32
1
Ex. B at 6797; Ex. A, vol. 2 at 544 (emphasis added).
2
argued on appeal that the underlined language misstated his burden.
3
Ex. C at 57-59.
4
the same two instructional error claims raised on appeal.
5
A.
6
7
Petitioner
The Court will construe the petition as raising
State Appellate Court Opinion Addressing Petitioner’s
Claim
The state appellate court rejected Petitioner’s first claim
8
noting that, under California law, insanity is an affirmative
9
defense to a criminal charge, and a defendant has the burden of
United States District Court
For the Northern District of California
10
proving it by a preponderance of the evidence.
11
2007 WL 4248859 at *13.
12
that an exception should apply where there has already been a prior
13
finding of insanity.
14
argued that such a prior finding should create a rebuttable
15
presumption of insanity, shifting the burden to the prosecution.
16
Id. at *14.
17
People v. Wolff, 61 Cal. 2d 795, 816-18 (1964), had already
18
considered and rejected such an exception, maintaining with the
19
defendant the burden of proving insanity by a preponderance of the
20
evidence.
21
People v. Gore,
The court rejected Petitioner’s argument
Id. at *13-14.
Specifically, Petitioner
The court noted that California case law, specifically
Id.
The appellate court agreed with Petitioner’s second argument
22
that the instruction on use of circumstantial evidence misstated
23
Petitioner’s burden.
24
instruction was adapted from CALJIC No. 2.01, which informs the
25
jury on how to evaluate circumstantial evidence when determining
26
whether the prosecution has met its burden of proving guilt beyond
27
a reasonable doubt.
28
met its burden where one reasonable interpretation of the evidence
Id. at *14-15.
Id.
The court noted that the
In such context, the prosecution has not
33
1
points to innocence.
2
sanity phase, the trial court erroneously raised Petitioner’s
3
burden beyond a preponderance of the evidence.
4
court nonetheless rejected Petitioner’s instructional error claim,
5
finding that the error was harmless.
6
pointed out the overwhelming evidence against Petitioner, including
7
the circumstances of the murder, Petitioner’s own statements and
8
expert opinion that Petitioner knew right from wrong.
9
appellate court also rejected the claim on the basis that the jury
Id.
But by applying this instruction to the
The appellate
Id.
Id. at *16.
The court again
Id.
The
United States District Court
For the Northern District of California
10
was elsewhere correctly instructed as to Petitioner’s burden of
11
proof.
12
B.
13
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15
16
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18
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20
21
22
Id. at *17.
Analysis of Petitioner’s Claim Under AEDPA
As noted above, a challenge to a jury instruction solely as an
error under state law does not state a claim cognizable in federal
habeas corpus proceedings.
Estelle, 502 U.S. at 71-72.
A federal
due process violation arises only if the instruction rendered the
entire trial unfair.
Estelle, 502 U.S. at 72.
Moreover, the
standard for a finding of insanity is a matter of state law and is
not of federal constitutional dimension.
U.S. 790, 798-99 (1952).
Leland v. Oregon, 343
A state law imposing a high burden of
proof of insanity, including proof beyond a reasonable doubt, does
not violate due process.
Id.
23
24
25
26
27
28
Here, given the overwhelming evidence against Petitioner and
the instructions as a whole, the appellate court reasonably
concluded that any error was harmless.
507 U.S. 619, 637 (1993).
See Brecht v. Abrahamson,
As detailed above, evidence of
Petitioner’s sanity at the time of the murder was substantial.
By
way of example only, the experts appointed by the trial court both
34
1
opined that Petitioner was sane (Ex. A, vol. 1 at 187-89; Ex. A,
2
vol. 3 at 56-57) and several witnesses testified that Petitioner
3
was cooperative, alert and oriented following the discovery of
4
Wagner’s murder.
5
3890-91, 3923-24, 3956-58, 4513-14, 4522, 4525.
6
court gave the jury other proper instructions on Petitioner’s
7
burden to prove insanity by a preponderance of the evidence.
8
A, vol. 2 at 551, 557, 563.
9
437-38 (2004) (state court reasonably found no due process
Ex. B at 3689, 3851-53, 3866, 3868-73, 3888,
Further, the trial
Ex.
See Middleton v. McNeil, 541 U.S. 433,
United States District Court
For the Northern District of California
10
violation where trial court gave at least three correct
11
instructions on unreasonable self-defense and one admittedly
12
incorrect instruction).
13
the error had a substantial and injurious effect on the verdict.
14
Brecht, 507 U.S. at 623.
15
Accordingly, Petitioner does not show that
Based on the above, the state court’s denial of this claim was
16
not contrary to, or an unreasonable application of, established
17
federal authority.
18
CONCLUSION
19
20
21
22
For the foregoing reasons, the Petition for a Writ of Habeas
corpus is DENIED.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases,
23
a certificate of appealability (COA) under 28 U.S.C. § 2253(c) is
24
GRANTED as to Petitioner’s competency hearing claim.
25
finds that reasonable jurists viewing the record could find the
26
Court’s assessment of this claim “debatable or wrong.”
27
McDaniel, 529 U.S. 473, 484 (2000).
28
to make a substantial showing that any of his other claims amounted
35
The Court
Slack v.
Because Petitioner has failed
1
to a denial of his constitutional rights or demonstrate that a
2
reasonable jurist would disagree with this Court’s assessment, a
3
COA is DENIED as to all other claims.
4
competency hearing claim does not obviate the requirement that
5
Petitioner file any notice of appeal within thirty (30) days of
6
this order.
7
8
9
United States District Court
For the Northern District of California
10
11
The COA on Petitioner’s
The Clerk shall terminate any pending motions as moot, enter
judgment in favor of Respondent and close the file.
IT IS SO ORDERED.
8/15/2011
Dated:________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE
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1
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
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ANTHONY C. GORE,
Case Number: CV08-04365 CW
Plaintiff,
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7
CERTIFICATE OF SERVICE
v.
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9
United States District Court
For the Northern District of California
10
ROBERT A. HOREL et al,
Defendant.
/
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on August 15, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.
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Anthony Clark Gore F-01081
California Medical Facility
P.O. Box 2000
M-229-L
Vacaville, CA 95696-2000
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Dated: August 15, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk
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