Free Response to Motion - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 GARY W. SCHONS Senior Assistant Attorney General 3 ANTHONY DA SILVA Deputy Attorney General 4 ARLENE A. SEVIDAL, State Bar No. 188317 Deputy Attorney General 110 West A Street, Suite 1100 5 San Diego, CA 92101 P.O. Box 85266 6 San Diego, CA 92186-5266 Telephone: (619) 645-2276 7 Fax: (619) 645-2191 Email: [email protected] 8 9 Attorneys for Respondent General Fund - Legal/Case Work 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 12 13 JOSEPH MCDONALD, 14 15 v. 16 E. B. HAAWS, WARDEN, 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, RESPONSE TO PETITIONER'S MOTION TO STAY THE PROCEEDINGS AND HOLD PETITIONER'S FEDERAL PETITION IN ABEYANCE AND TO APPOINT A GUARDIAN Respondent. ADLITEM 08-0652 L (PCL)

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 GARY W. SCHONS Senior Assistant Attorney General 3 ANTHONY DA SILVA Deputy Attorney General 4 ARLENE A. SEVIDAL, State Bar No. 188317 Deputy Attorney General 110 West A Street, Suite 1100 5 San Diego, CA 92101 P.O. Box 85266 6 San Diego, CA 92186-5266 Telephone: (619) 645-2276 7 Fax: (619) 645-2191 Email: [email protected] 8 9 Attorneys for Respondent 10 11 12 13 14 15 16 E. B. HAAWS, WARDEN, 17 18 19 20 INTRODUCTION Petitioner presents 12 grounds for relief in the First Amended Petition for Writ of Habeas Respondent. v. JOSEPH MCDONALD, Petitioner, 08-0652 L (PCL) RESPONSE TO PETITIONER'S MOTION TO STAY THE PROCEEDINGS AND HOLD PETITIONER'S FEDERAL PETITION IN ABEYANCE AND TO APPOINT A GUARDIAN ADLITEM IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

21 Corpus ("First Amended Petition") and the Petition for Writ of Habeas Corpus ("Petition") filed on 22 April 1, 2008, which he incorporates by reference. Of these twelve grounds, Petitioner has not 23 exhausted ground two in the First Amended Petition and none of the grounds in the Petition. 24 Petitioner requests that this Court stay and abey the petitions so that he may exhaust these claims 25 in state court. This Court should not hold the Petition in abeyance while Petitioner exhausts his state 26 court remedies because good cause has not been shown, and the claims are plainly meritless. 27 Petitioner also requests that he be appointed a guardian ad litem because he is unable to pursue

28 his habeas corpus litigation because of his alleged mental disabilities. Petitioner has failed to
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1 produce substantive evidence of incompetence sufficient to warrant an incompetency hearing and 2 appointment of a Guardian Ad Litem. 3 4 STATEMENT OF THE CASE Petitioner was convicted of three counts of burglary (counts 1-3; Cal. Pen. Code, § 459 1/);

5 attempted burglary (count 4; §§ 664 and 459); petty theft with a prior (count 5; § 484); receiving 6 stolen property (count 6; § 496 (a)); and possession of a firearm by a felon (count 7, § 12021, 7 (a)(1)). (II CT 300-301.) Petitioner was also found to have suffered one prison prior conviction (§§ 8 667.5 (b) and 668); a serious felony prior conviction (§§ 667 (a)(1), 668, 1192.7 (c)); and a strike 9 prior conviction (§§ 667 (b) - (i); 1170.12; 668.) Petitioner was sentenced to a total of 22 years and 10 four months in state prison which consisted of the midterm of four years, doubled, for count 1, one 11 year and four months, doubled, each for counts 2-3, eight months, doubled, each for counts 4 12 through 7, and five years for the prison prior allegation. (II CT 416, 478.) The trial court stayed 13 sentence for count 6 and the prison prior allegation pursuant to section 654. 14 Petitioner filed a direct appeal, and the California Court of Appeal, Fourth Appellate District,

15 Division I, affirmed the judgment on January 17, 2007. (Lodgment 3.) Petitioner filed a Petition 16 for Review in the California Supreme Court, which was denied on March 30, 2007. The state court 17 decision became final on June 28, 2007. The limitations period expired one year later on June 27, 18 2008. 19 Petitioner filed the Petition together with a request to proceed in forma pauperis in the United

20 States District Court on April 1, 2008. This Court denied Petitioner's motion and dismissed the 21 case without prejudice and with leave to amend. On May 19, 2008, Petitioner filed the First 22 Amended Petition. He requested that this Court stay the proceedings and hold the Petition in 23 abeyance while he exhausts his claims in the state court. Petitioner also requested that a guardian 24 ad litem be appointed to him because his mental incapacity rendered him incapable of litigating the 25 Petition. This Court ordered Petitioner to file a brief in support of these requests. This Court 26 27 1. Any subsequent statutory reference is to the California Penal Code unless otherwise 28 indicated.
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1 ordered Respondent to file a response to the stay request and to the request for guardian ad litem by 2 August 14, 2008, as well as conduct independent investigation. Respondent files this response to 3 the stay and appointment of guardian ad litem request. Respondent, for its independent

4 investigation, requested and obtained from California State Prison, Los Angeles County, where 5 Petitioner is housed at this time, all medical and psychological records and any record which might 6 show whether Petitioner (a) currently suffers from mental illness and (b) whether the mental illness 7 prevents him from being able to understand and respond to court orders. Petitioner's mental and 8 psychological records are lodged as Exhibit 1. 9 Respondent requests Exhibit 1 be filed under seal, since the exhibit contains Petitioner's

10 medical records, received from California State Prison, Los Angeles County, pursuant to this Court's 11 May 29, 2008, order. Health Insurance Portability and Acountability Act of 1996 (HIPAA), 42 12 U.S.C. § 1320d (4); Rojes v. Riverside General Hospital, 203 Cal.App.3d 1151, 1165-66, 250 13 Cal.Rptr. 435 (1988), overruled on another ground in Passavanti v. Williams, 225 Cal.App.3d 1602, 14 1607, 275 Cal.Rptr. 887, 890 (1990). 15 16 17 18 19 20 ARGUMENT I. THE PROCEEDINGS SHOULD NOT BE STAYED AND THE PETITION SHOULD NOT BE HELD IN ABEYANCE BECAUSE GOOD CAUSE DOES NOT EXIST WHY PETITIONER DID NOT EXHAUST THE CLAIMS IN STATE COURT AND THE UNEXHAUSTED CLAIMS ARE "PLAINLY MERITLESS" Here, the petition presents both exhausted and unexhausted claims. Petitioner requests that this

21 Court stay and abey the present petition so he can exhaust these eleven unexhausted claims in state 22 court. The proceedings should not be stayed and the petition held in abeyance because good cause 23 does not exist why petitioner did not exhaust the claims in state court, and the claims are "plainly 24 meritless." 25 Federal courts may not grant habeas relief to a person held in state custody unless the petitioner

26 has exhausted his available state court remedies as to each of the issues presented. Rose v. Lundy, 27 455 U.S. at 510, 518, 102 S. Ct. 1198, 1203 (1982). A federal court cannot entertain a petition that 28 includes both exhausted and unexhausted claims. Id. The United States Supreme Court has made
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1 it clear that the exhaustion rule is a total one: every claim in a federal habeas petition must be 2 properly exhausted before any of the claims contained in the petition can be considered. See Id. at 3 518-19, 102 S. Ct. at 1203. See also Jefferson v. Budge, 419 F.3d 1013, 1015 (9th Cir. 2005) (under 4 Rose, a petition raising both exhausted and unexhausted claims must be dismissed). 5 When petitions are found to be "mixed," petitioners must be given the opportunity to amend

6 their petitions to delete the unexhausted claims and proceed only with the exhausted claims. Rose, 7 455 U.S. at 510, 102 S. Ct. at 1199 (the district court must give a petitioner the choice of returning 8 to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only 9 exhausted claims). "[A] federal habeas prisoner has a right to amend a mixed petition to delete 10 unexhausted claims as an alternative to suffering a dismissal." James v. Giles, 221 F.3d 1074, 1077 11 (9th Cir. 2000). Additionally, in order to meet the twin purposes of AEDPA's exhaustion and statute 12 of limitations requirement, the United States Supreme Court held that "stay and abeyance should 13 be available only in limited circumstances." Rhines v. Weber, 544 U.S. 269, 275-77, 125 S. Ct. 14 1528, 161 L.Ed.2d 440 (2005). The High Court further found that stay and abeyance "is only 15 appropriate when the district court determines there was good cause for the petitioner's failure to 16 exhaust his claims first in state court." Id. at 277. In addition to this requirement, the Court also 17 held that the district court would abuse its discretion in granting a stay when the claims are "plainly 18 meritless." Id. The court also looked to whether the petitioner was engaging in intentional "dilatory 19 litigation tactics." Id. at 278. 20 In light of the decision in Rhines, stay and abeyance is not appropriate here. Citing his

21 alleged mental illness and low mental capacity, Petitioner claims there is good cause for his failure 22 to file his claims in state court. However, as noted in Argument II below, there is not substantial 23 evidence to show petitioner's incapacity. In fact, petitioner is a high school graduate who received 24 A, B, and C grades, without taking special education classes. Moreover, he has been witnessed by 25 prison staff writing, reading, typing and preparing legal documents. (Ex. 1 at 288.) Petitioner has 26 been able to file, in pro per, many state petitions as well as requests to relieve his counsel on direct 27 appeal. (Lodgments 1-2, 4-6.) These filings belie petitioner's claims that he was unable to exhaust 28
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1 his state claims because of mental or cognitive incapacity. Thus, good cause does not exist for 2 petitioner's failure to file the claims in state court. 3 Even assuming good cause, this Court should nonetheless decline to hold the petition in

4 abeyance because the unexhausted claims are "plainly meritless." Petitioner raises the following 5 claims in the First Amended Petition and Petition which appear to be unexhausted: (1) The trial 6 court erred in allowing the prosecutor to impeach a defense witness with letters that violated Brady 7 v. Maryland (1963), 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963). (First Amended Pet. at 7; Doc. 1 at 5); 8 (2) insufficient evidence of burglary in count 1 (Doc. 1 at 5); (3) insufficient evidence of burglary 9 in count 2 (Doc. 1 at 6); (4) California Penal Code section 654 bars consecutive sentence of burglary 10 and ex-felon in possession of a firearm (Doc. 1 at 6, 64-67); (5) reference to the gang affiliations of 11 defense witnesses violated petitioner's due process rights; (Doc. 1 at 6, 69-92); (6) a video tape 12 depicting petitioner rapping was erroneously introduced in violation of petitioner's due process 13 rights and California Evidence Code section 352 (Doc. 1 at 7, 93); (7) various claims of 14 prosecutorial misconduct (Doc. 1 at 8-9, 34-65); (8) ineffective assistance of trial counsel (Doc. 1 15 at 10, 66-67); (9) cumulative error (Doc. 1 at 11); and (10) erroneous jury instructions (Doc. 1 at 12). 16 Ground two of the First Amended Petition and ground one in the Petition are plainly meritless 17 because there was no violation under Brady v. Maryland, supra. The letters used to impeach the 18 defense witness were in Petitioner's possession because Regina Burton, his girlfriend, sent them to 19 Petitioner while he was in jail. Thus there was nothing for the prosecution to disclose since 20 Petitioner knew the contents of his own letters. He could not have been surprised when the letters 21 were used to cross-examine Burton. Moreover, the letters did not contain exculpatory material, nor 22 did they establish Petitioner's guilt, but rather, went to the credibility of Burton. Due process was 23 not violated because the questioning of Burton with respect to the letters was brief, and Burton was 24 rehabilitated during redirect examination. 25 Grounds two and three of the Petition are also plainly meritless, as there was substantial

26 evidence of Petitioner's guilt in the Havern and Borrego burglaries. Under the federal Constitution's 27 due process clause, there is sufficient evidence to support defendant's conviction if, viewing the 28 evidence in the light most favorable to the prosecution, a rational trier of fact could have found the
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1 essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 2 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). There was substantial evidence to support Petitioner's 3 convictions on both burglaries. During the Borrego burglary, Petitioner was seen driving away in 4 an Oldsmobile. A neighbor took down the license plate number of the car. (Lodgment 3 at 5.) 5 Petitioner was later arrested in this car. In the glove compartment was a vehicle title listing 6 Petitioner as the owner of the car. Inside the trunk of the car, was a suitcase and a tripod which 7 belonged to the Haverns and was taken during the Havern burglary. (Lodgment 3 at 3, 4.) In the 8 apartment where appellant was living, a purse, a camcorder and a memory stick which contained 9 images of Jolene Havern, which had been taken during the burglary, were recovered. (Lodgment 3 10 at 3, 4.) The videocassette in the camcorder also showed a video of petitioner performing a rap in 11 which he talked about some of the guns he had taken during other burglaries. (Lodgment 6 at 4.) 12 Moreover, petitioner's cohort in the burglaries, Tony Washington, admitted to a detective that he 13 and petitioner drove around looking for houses that did not have cars in front of them. Washington 14 also admitted that petitioner committed the burglaries. (Lodgment 6 at 11.) Because there was 15 substantial evidence to support the convictions, grounds two and three of the petition are plainly 16 meritless. 17 Ground four of the Petition that California Penal Code section 654 bars consecutive sentence

18 of burglary and ex-felon in possession of a firearm, and ground ten, erroneous CALJIC jury 19 instructions are plainly meritless because these claims fail to state a federal question. (Doc. 1 at12, 20 64-67.) These state law claims do not provide a basis for habeas corpus relief in this court. Federal 21 habeas corpus is available only on behalf of a person in custody in violation of the Constitution or 22 laws or treaties of the United States. 28 U.S.C. § 2254 (a); Estelle v. McGuire, 502 U.S. 62, 68; 112 23 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Federal habeas corpus is unavailable to retry state issues. 24 Milton v. Wainwright, 407 U.S. 371, 377, 92 S.Ct. 2174, 2178, 33 L.Ed.2d 1 (1972). A federal 25 court 26 may not issue the writ on the basis of a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 27 41, 104 S.Ct. 871, 874-75, 79 L.Ed.2d 29 (1989). 28 Ground five of the Petition regarding the cross examination of Washington about his gang
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1 affiliations and ground six the admission of a videotape showing petitioner rapping also fail to state 2 a federal question. While Petitioner makes references to violations of due process, the claims are 3 essentially claims involving state evidentiary errors. Specifically, Petitioner claims the evidence 4 violated California Evidence Code section 352, and that the admission of the videotape violated 5 California Evidence Code 356 because the videotape's authenticity was not established. (Doc. 1-2 6 at 11.) Errors of state law cannot repackaged as federal errors simply by citing the due process 7 clause. Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999). 8 In any event, there was no due process violation because the references to gang affiliations

9 merely went to the credibility and bias of the defense witness. The defense witness claimed that a 10 "homie" committed the burglaries with him and not Petitioner. The prosecutor asked if a "homie" 11 was a gang member. The witness claimed a "homie" was simply a friend, and he denied any 12 membership in a gang. The questioning never mentioned Petitioner as a member of a gang. (Doc. 13 1 at 76-81.) Thus, Petitioner suffered no prejudice as a result of the question. Moreover, the portion 14 of the videotape where Petitioner rapped about stolen property was properly admitted as an 15 admission by Petitioner. (Doc. 1 at 99.) Therefore, grounds five and six are plainly meritless. 16 Ground seven of the Petition which sets forth various claims of prosecutorial misconduct are

17 is also plainly meritless. Prosecutorial misconduct warrants habeas relief only if the prosecutor's 18 comments "so infected the trial with unfairness as to make the resulting conviction a denial of due 19 process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986) 20 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871, 40 L. Ed. 2d 431 21 (1974)) ; Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000) (citations omitted), cert. denied, 532 22 U.S. 984, 121 S. Ct. 1630, 149 L. Ed. 2d 491 (2001). "To constitute a due process violation, the 23 prosecutorial misconduct must be "'of sufficient significance to result in the denial of the defendant's 24 right to a fair trial." Greer v. Miller, 483 U.S. 756, 764, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). 25 In measuring the fairness of the trial, a court may consider, inter alia, "(1) whether the prosecutor's 26 comments manipulated or misstated the evidence; (2) whether the trial court gave a curative 27 instruction; and (3) the weight of the evidence against the accused." Tak Sun Tan v. Runnels, 413 28 F.3d 1101, 1115 (9th Cir. 2005) (citing Darden, 477 U.S.168, 181-182; 106 S.Ct. 2464, 91 L.Ed.2d
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1 144 (1986)). 2 Petitioner claims the prosecutor improperly questioned Burton regarding how many times

3 she visited him in jail. The prosecutor did not commit error by trying to bring out the defense 4 witness's possible bias. The prosecutor also did not commit misconduct by pointing out in closing 5 argument that he and Washington were in the video, drinking, rapping, and committing burglaries 6 together. A prosecutor may make vigorous arguments as long as it amounts to fair comment on the 7 evidence, which can include reasonable inferences or deductions to be drawn therefrom. Berger v. 8 United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.ed.2d 1314 (1936); People v. Williams, 16 Cal.4th 9 153, 221, 940 P.2d 710, 66 Cal.Rptr.2d 123 (1997). The prosecutor was merely pointing out what 10 was obvious from the videotape which showed the duo rapping about the guns they took during the 11 burglaries. Moreover, the prosecutor was not vouching or providing his personal opinion when he 12 argued in closing that the detective had no reason to lie. 13 14 15 16 17 People v. Huggins, 38 Cal.4th 175, 206-207, 131 P.3d 995, 41 Cal.Rptr.3d 593 (2006). Petitioner's 18 claims of prosecutorial misconduct are all plainly meritless. 19 Finally, petitioner, in ground eight of the Petition, argues that trial counsel was ineffective "It is not... misconduct to ask the jury to believe the prosecution's version of events as drawn from the evidence. Closing argument in a criminal trial is nothing more than a request, albeit usually lengthy and presented in narrative form, to believe each party's interpretation, proved or logically inferred from the evidence, of the events that led to the trial. It is not misconduct for a party to make explicit what is implicit in every closing argument...."

20 because she did not object to the prosecutor eliciting evidence from petitioner's parole officer that 21 petitioner admitted to living at Troy Street where the some of the stolen property was recovered. 22 The argument is plainly meritless. The Sixth Amendment to the United States Constitution 23 guarantees the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 24 S. Ct. 2052, 2063 (1984). To prevail on a claim that his counsel rendered ineffective assistance, 25 Petitioner must demonstrate that: (1) counsel's performance was deficient; and (2) the deficient 26 performance prejudiced his defense. Id. at 688-93, 104 S. Ct. at 2064-68. See also Yarborough v. 27 Gentry, 540 U.S. 1, 124 S. Ct. 1, 4 (2003) (per curiam) (the Sixth Amendment right "is denied when 28 a defense attorney's performance falls below an objective standard of reasonableness and thereby
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1 prejudices the defense.") The first prong of the Strickland test -- deficient performance -- requires 2 a showing that counsel's performance was "outside the wide range of professionally competent 3 assistance." Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. A habeas reviewing court can neither 4 second-guess counsel's decisions nor "`apply the fabled twenty-twenty vision of hindsight'" but, 5 "rather, will defer to counsel's sound strategy." Mortice v. Woodford, 255 F.3d 926, 939 (9th Cir. 6 2001) (quoting Strickland). Petitioner must "overcome the presumption that, under the

7 circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. 8 at 689, 104 S. Ct. at 2065 (internal quotation marks and citation omitted); (even if an ineffective 9 assistance claim is not subject to Section 2254 (d)(1) deference, the petitioner still must overcome 10 the presumption that counsel's conduct might be considered sound trial strategy). Here, trial counsel 11 did not object because it was the defense trial strategy that Petitioner was living at a half way house, 12 and not on Troy Street, because he was on parole. Thus, Petitioner's status as a parolee was part 13 of the defense, so trial counsel did not object to the prosecutor questioning the parole officer about 14 Petitioner's status as a parolee. (Doc. 1-2 at 66-67.) Trial counsel was not deficient; the claim is 15 plainly meritless. 16 This Court should decline to hold the Petition and First Amended Petition in abeyance

17 because petitioner has not shown good cause why he did not exhaust his claims in the state court, 18 and petitioner's unexhausted claims are "plainly meritless." None of these claims could have 19 potential merit and would not justify allowing Petitioner to waste further resources by presenting 20 them to the state court. Under Rhines, this case is not appropriate to be held in abeyance. Petitioner 21 should be allowed to delete the unexhausted claims and to proceed with the exhausted claims. 22 Rhines, 125 S. Ct. at 1535. Otherwise, the Petition should be dismissed. 23 24 25 26 27 Petitioner requests a Guardian Ad Litem be appointed because he claims his incompetence II. PETITIONER HAS FAILED TO PRODUCE SUBSTANTIVE EVIDENCE OF INCOMPETENCE SUFFICIENT TO WARRANT AN INCOMPETENCY HEARING AND APPOINTMENT OF A GUARDIAN AD LITEM

28 and mental incapacity prevent him from pursuing the instant habeas Petition on his own. (Doc. 15,
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1 at 3.)

Petitioner fails to produce substantial evidence of incompetence to warrant the court

2 conducting a competency hearing and appointing a Guardian Ad Litem. Petitioner's request should 3 be denied. 4 In order to be entitled to a competency determination and appointment of a guardian ad

5 litem, Petitioner must show substantial evidence of incompetence. In order to obtain relief on a 6 substantive incompetence claim, Petitioner must present evidence "sufficient to positively, 7 unequivocally, and clearly generate a real, substantial and legitimate doubt as to [his] mental 8 capacity." Watts v. Singletary, 87 F.3d 1282, 1290 (11th Cir. 1996) (quoting Bruce v. Estelle, 483 9 F.2d 1031, 1043 (5th Cir. 1973)(overruled on another ground in Zapata v. Estelle, 585 F.2d 750 , 10 751-752 (5th Cir. 1978)). 11 The preferred procedure when a substantial question exists regarding the mental competence

12 of a party proceeding pro se is for the district court to conduct a hearing to determine whether or not 13 the party is competent, so that a representative may be appointed if needed. Krain v. Smallwood, 14 880 F.2d 1119, 1121 (9th Cir. 1989). Counsel should be appointed for the limited purpose of 15 representing Petitioner should a competency hearing be ordered. Allen v. Calderon, 408 F.3d 1150, 16 1153 (9th Cir. 2005). 17 18 A. Petitioner's Evidence Of Incompetency

In support for his request to have a guardian ad litem appointed, Petitioner claims that he

19 suffers from depression. He takes sleeping medication which prevents him from sleeping. Petitioner 20 also claims mental incapacity due to the previous ingestion of PCP and other drugs which have left 21 him cognitively impaired. He also points out that he has never been legally trained. (Doc. 10 at 322 4.) Petitioner submitted his own declaration, a declaration by fellow inmate, M. Lindsey, as well 23 as test results which show Petitioner to have a reading level at grade 1.7. (Doc. 10 at 73.) 24 In his declaration, Petitioner claims that he only reads at a first grade level and does not

25 understand legal procedure. He suffers from inadequate mental cognitive functioning due to his use 26 of cocaine, PCP, marijuana, and paint sniffing. (Doc. 10 at 5-6.) M. Lindsey also submitted a 27 declaration in which he asserts that he personally knows Petitioner within the "A" yard community, 28 and knows that because of Petitioner's mental condition and lack of familiarity with the habeas
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1 process, Petitioner is unable to proceed without proper assistance. (Doc. 10 at 7.) 2 In his First Amended Petition, Petitioner incorporates the Petition filed on April 1, 2008.

3 Exhibit G of the Petition includes various mental health reports. An entry made on August 10, 2006, 4 in the context of the Enhanced Outpatient Program (EOP), states that Petitioner's "intellectual 5 abilities are low average with the suggestion of mild cognitive deficits, which may be substance 6 induced." (Doc. 1-3 at 89, see also Doc. 1-3 at 97, 99.) A July 10, 2006 entry indicates that 7 Petitioner's "intelligence is average and frank symptoms are reportedly resolved with his current 8 regime." (Doc. 1-3 at 93.) 9 10 11 A litigant is not entitled to appointed counsel in a federal postconviction proceeding, B. Exhibits Submitted By Petitioner And Those Obtained By Respondent Do Not Provide Substantial Evidence Of Incompetency

12 Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); Powell v. 13 Davis, 415 F.3d 722, 727 (7th Cir. 2005), although a district court may appoint counsel if the 14 interests of justice so require. 18 U.S.C. § 3006A (a)(2)(b). 15 Respondent submits that while Petitioner claims that he has a low reading level, and

16 therefore cannot litigate his claims, the mental health interdisciplinary progress notes indicate 17 otherwise. On February 14, 2008, he was referred for Developmentally Disabled Placement 18 ("DDP") reevaluation. (Ex. 1 at 288.) Petitioner's teacher noted that Petitioner claimed he could 19 not read and scored a 0.0 on a reading score. However, he had been observed by teachers, DDP 20 officers and mental health staff reading, writing, typing, and working on legal papers. (Ex. 1 at 288.) 21 B. Betz, Ph.D. interviewed Petitioner as part of the reevaluation, and Betz stated that "interview with 22 inmate revealed vocabulary, knowledge base, and verbal reasoning skills well in excess of DDP 23 qualifying inmate." (Ex. 1 at 288.) Betz also reviewed Petitioner's file which showed that Petitioner 24 received a high school diploma without special education classes and received grades of A, B, and 25 C. (Ex. 1 at 288, 289.) Betz also noted that Petitioner "worked culinary at RJDCF [the Richard J. 26 Donovan Correctional Facility], that he had a driver's license, and he occupied a `position of 27 leadership' in his controlling case." (Ex. 1 at 288.) Based on this, Betz removed Petitioner from 28 the Developmentally Disabled Program. (Ex. 1 at 288.) Petitioner's cognitive abilities have been
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1 characterized as low average to average. (Ex. at 356, 361.) Contrary to Petitioner's assertions, he 2 does not seem to suffer from mental illness or mental incapacity which prevents him from being able 3 to understand and respond to court orders. As noted in Argument I above, Petitioner has been able 4 to file numerous motions and petitions as a pro per. (Lodgments 1-2, 4-6.) 5 Further, Petitioner has failed to submit a declaration from a psychiatrist or psychologist

6 stating that Petitioner's mental illness prevents him from being able to understand and respond to 7 court orders. Although it is within this Court's discretion to conduct a competency hearing and 8 appoint a Guardian Ad Litem to represent Petitioner, Respondent submits Petitioner has failed to 9 provide sufficient evidence of incompetence to warrant a competency hearing, even if Petitioner 10 suffers from some mental illness such as schizophrenia and depression. (Ex. 1 at 343, 345.) "Even 11 a history of serious mental illness does not necessarily constitute substantial evidence of 12 incompetence that would require a court to declare a doubt concerning a defendant's competence and 13 to conduct a hearing on that issue". People v. Blair, 36 Cal.4th 686, 714, 31 Cal. Rptr. 3d 485, 115 14 P.3d 1145, 1162 (2005). In any event, in a interdisciplinary progress note from this year, the clinical 15 psychologist noted that Petitioner's insight and judgment was good, oriented and at normal speed. 16 There was also no evidence of acute psychosis at this time. (Ex. 1 at 343.) 17 Despite some notation of mental illness, Petitioner has failed to establish the mental

18 illness prevents him from being able to understand and respond to this Court's orders. His request 19 to be appointed a guardian ad litem should be denied. 20 21 22 23 24 25 26 27 28
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1 2

CONCLUSION Accordingly, Respondent submits that Petitioner's request to stay the proceedings and hold

3 the federal petition in abeyance while he exhausts his claims in state court should be denied. 4 Petitioner should be allowed to delete the unexhausted claims and proceed on the exhausted claims. 5 Otherwise, the Petition should be dismissed. Petitioner has also failed to produce substantial 6 evidence of incompetence to warrant the Court conducting a competency hearing and appointing a 7 Guardian Ad Litem. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Dated: August 14, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California GARY W. SCHONS Senior Assistant Attorney General ANTHONY DA SILVA Deputy Attorney General s/ Arlene A. Sevidal ARLENE A. SEVIDAL Deputy Attorney General Attorneys for Respondent
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1 2 3 INTRODUCTION 4 STATEMENT OF THE CASE 5 ARGUMENT 6 7 8 9 10 11 A. 12 B. 13 14 CONCLUSION 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. I.

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THE PROCEEDINGS SHOULD NOT BE STAYED AND THE PETITION SHOULD NOT BE HELD IN ABEYANCE BECAUSE GOOD CAUSE DOES NOT EXIST WHY PETITIONER DID NOT EXHAUST THE CLAIMS IN STATE COURT AND THE UNEXHAUSTED CLAIMS ARE "PLAINLY MERITLESS" PETITIONER HAS FAILED TO PRODUCE SUBSTANTIVE EVIDENCE OF INCOMPETENCE SUFFICIENT TO WARRANT AN INCOMPETENCY HEARING AND APPOINTMENT OF A GUARDIAN AD LITEM Petitioner's Evidence Of Incompetency

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Exhibits Submitted By Petitioner And Those Obtained By Respondent Do Not Provide Substantial Evidence Of Incompetency 11 13

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1 2 3 Cases 4 Allen v. Calderon 408 F.3d 1150 (9th Cir. 2005) 5 Berger v. United States 6 295 U.S. 78 55 S.Ct. 629 7 79 L.ed.2d 1314 (1936) 8 Brady v. Maryland 10 L.Ed.2d 215 9 373 U.S. 83 S.Ct. 1194 (1963) 10 Bruce v. Estelle 483 F.2d 1031 (5th Cir. 1973) 11 Darden v. Wainwright 12 477 U.S. 168 106 S. Ct. 2464 13 91 L. Ed. 2d 144 (1986) 14 Donnelly v. DeChristoforo 416 U.S. 637 15 94 S. Ct. 1868 40 L. Ed. 2d 431 (1974) 16 Drayden v. White, 17 232 F.3d 704 (9th Cir. 2000) 18 Estelle v. McGuire 502 U.S. 62 19 112 S.Ct. 475 116 L.Ed.2d 385 (1991) 20 Greer v. Miller 21 (1987) 483 U.S. 756 107 S.Ct. 3102 22 97 L.Ed.2d 618 23 Greer v. Miller 483 U.S. 756 24 107 S.Ct. 3102 97 L.Ed.2d 618 (1987) 25 Jackson v. Virginia 26 443 U.S. 307 99 S.Ct. 2781 27 61 L.Ed.2d 560 (1979) 28

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TABLE OF AUTHORITIES (continued) 1 2 James v. Giles 221 F.3d 1074 (9th Cir. 2000) 3 Jefferson v. Budge 4 419 F.3d 1013 (9th Cir. 2005) 5 Krain v. Smallwood 880 F.2d 1119 (9th Cir. 1989) 6 Krain v.Smallwood 7 880 F.2d 1119 (9th Cir. 1989) 8 Milton v. Wainwright 407 U.S. 371 9 92 S.Ct. 2174 33 L.Ed.2d 1 (1972) 10 Mortice v. Woodford 11 255 F.3d 926 (9th Cir. 2001) 12 Passavanti v. Williams 225 Cal.App.3d 1602 13 275 Cal.Rptr. 887 (1990) 14 Pennsylvania v. Finley 481 U.S. 551 15 107 S. Ct. 1990 95 L. Ed. 2d 539 (1987) 16 People v. Blair 17 36 Cal.4th 686 31 Cal. Rptr. 3d 18 115 P.3d 1145 (2005) 19 People v. Huggins 38 Cal.4th 175 20 131 P.3d 995 41 Cal.Rptr.3d 593 (2006) 21 People v. Williams 22 16 Cal.4th 153 940 P.2d 710 23 66 Cal.Rptr.2d 123 (1997) 24 Poland v. Stewart 169 F.3d 573 (9th Cir. 1999) 25 Powell v. Davis 26 415 F.3d 722 (7th Cir. 2005) 27 28
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TABLE OF AUTHORITIES (continued) 1 2 Rhines v. Weber 544 U.S. 269 3 125 S. Ct. 1528 161 L.Ed.2d 440 (2005) 4 Rojes v. Riverside General Hospital 5 203 Cal.App.3d 1151 250 Cal.Rptr. 435 (1988) 6 Rose v. Lundy 7 455 U.S. at 510 102 S. Ct. 1198 (1982) 8 Strickland v. Washington 9 466 U.S. 668 104 S. Ct. 2052 (1984) 10 Tak Sun Tan v. Runnels 11 413 F.3d 1101 (9th Cir. 2005) 12 Watts v.Singletary 87 F.3d 1282 (11th Cir. 1996) 13 Yarborough v. Gentry 14 540 U.S. 1 124 S. Ct. 1 (2003) 15 Zapata v. Estelle 16 585 F.2d 750 (5th Cir. 1978) 17 18 Constitutional Provisions 19 Sixth Amendment 20 21 22 Statutes 18 U.S.C. § 3006A (a)(2)(b) 11 3 7 8 Page

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23 42 U.S.C. § 1320d (4) 24 California Evidence Code 25 § 356 26 27 28

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TABLE OF AUTHORITIES (continued) 1 2 California Penal Code 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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§ 459 § 484 § 496 (a) § 654 § 664 § 667 (a)(1) § 667 (b)- (i) § 667.5 (b) § 668 § 1170.12 § 1192.7 (c) § 2254 (d)(1) § 12021 (a)(1)

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