Free Response ( Non Motion ) - District Court of California - California

Case 3:07-cv-05013-SI

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Filed 03/21/2008

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 PEGGY S. RUFFRA Supervising Deputy Attorney General 5 MICHELE J. SWANSON, State Bar No. 191193 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5703 7 Fax: (415) 703-1234 Email: [email protected] 8 9 Attorneys for Respondent 10 11 12 13 14 DANIEL MOORING, 15 Petitioner, 16 v. 17 J. WALKER, Warden, 18 Respondent. 19 20 21 Respondent provides this answer to the order to show cause why the petition for writ ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS C 07-5013 SI (pr) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

22 of habeas corpus should not be granted: 23 24 25 I. CUSTODY Petitioner is lawfully in the custody of J. Walker, Warden of California State Prison-

26 Sacramento, as a result of a judgment of conviction in San Francisco County Superior Court, case 27 number 182125-1. A jury found petitioner guilty of first degree murder with a robbery special 28 circumstance, two counts of second degree robbery, assault with a deadly weapon, and possession
Answer to Petition for Writ of Hab. Corpus Mooring v. Walker C 07-5013 SI (pr)

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Case 3:07-cv-05013-SI

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1 of a firearm by a felon. The trial court sentenced petitioner to life without the possibility of parole 2 on the murder count, five-year upper terms for each of the two robbery counts, a four-year upper 3 term on the assault count, and an eight-month middle term on the possession count. The sentence 4 on one of the robbery counts and the assault count were stayed. 5 6 7 II. GENERAL AND SPECIFIC DENIALS Respondent denies that the state appellate court rulings were based on an unreasonable

8 determination of fact or were contrary to or involved an unreasonable application of clearly 9 established United States Supreme Court precedent. Respondent specifically denies that: (1) the 10 admission of evidence of petitioner's involvement in a subsequent robbery and his statement to the 11 police afterward violated petitioner's right to due process; (2) the inadvertent admission of hearsay 12 that was immediately stricken from the record violated petitioner's right to confrontation; (3) the 13 prosecutor's failure to disclose a police report summarizing an audiotaped interview with one of the 14 prosecution witnesses violated Brady v. Maryland, 373 U.S. 83 (1963); (4) the failure to require jury 15 unanimity on an underlying theory of guilt violated petitioner's rights under the Sixth or Fourteenth 16 Amendment; (5) the admission of a photograph of the victim while alive violated petitioner's right 17 to due process; (6) the upper term sentences imposed on the robbery and assault counts violated 18 Blakely v. Washington, 542 U.S. 296 (2004); and, (7) that there were cumulative errors at trial that 19 violated petitioner's right to due process. 20 21 22 III. PROCEDURAL DEFENSES Petitioner exhausted his claims in state court. The petition is timely within the meaning

23 of 28 U.S.C. § 2244. 24 25 26 IV. LODGED DOCUMENTS Respondent has lodged concurrently with this answer the following exhibits: (1) State

27 Grand Jury Transcripts (3 volumes); (2) State Court Clerk's Transcript (3 volumes); (3) Motions in 28 Limine (8 volumes); (4) State Court Reporter's Transcript (31 volumes); (5) Supplemental Clerk's
Answer to Petition for Writ of Hab. Corpus Mooring v. Walker C 07-5013 SI (pr)

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Case 3:07-cv-05013-SI

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1 Transcript (1 volume); (6) Supplemental Reporter's Transcript (1 volume); (7) Probation Report; 2 (8) Motion to Recall Sentence; (9) Opinion of California Court of Appeal; (10) Petition for Review 3 filed in the California Supreme Court; (11) Order of California Supreme Court denying review; (12) 4 Petition for Writ of Habeas Corpus filed in San Francisco County Superior Court; (13) docket sheet 5 from petitioner's habeas corpus proceeding in California Court of Appeal; and, (14) docket sheet 6 from petitioner's habeas corpus proceeding in California Supreme Court. Respondent hereby 7 incorporates by reference the accompanying memorandum of points and authorities in support of 8 this answer. 9 10 11 12 13 14 15 16 17 18 19 20
40227446.wpd

Dated: March 13, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General PEGGY S. RUFFRA Supervising Deputy Attorney General

/s/ Michele J. Swanson MICHELE J. SWANSON Deputy Attorney General Attorneys for Respondent

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SF2007403156

Answer to Petition for Writ of Hab. Corpus

Mooring v. Walker C 07-5013 SI (pr)

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