Roberts v. Warden, San Quentin State Prison, No. CIV S-93-0254 GEB DAD

LARRY ROBERTS, Petitioner,

v.WARDEN, San Quentin State Prison, Respondent.

No. CIV S-93-0254 GEB DAD

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: June 1, 2012

DEATH PENALTY CASE

ORDER

Petitioner's motion for an evidentiary hearing and to expand the record came on for hearing before the court on September 21, 2011. Assistant Federal Defender Allison Claire and Attorney Robert Bloom appeared for petitioner. Deputy Attorney Generals Glenn Pruden and Bruce Ortega appeared for respondent. For the reasons set forth below, after considering the briefs and the arguments of counsel, and good cause appearing, the court grants petitioner's motion to expand the record and grants in part petitioner's motion for an evidentiary hearing.

I. Background

A. Facts Presented at Trial¹

1. Guilt Phase

Early on the morning of August 17, 1980, Charles Gardner, an inmate at the California Medical Facility, Vacaville, walked down a first-floor corridor as his fellow inmates lounged against the walls on both sides. He emerged with 11 stab wounds that would shortly prove to be fatal. Nevertheless, he was able to grab a knife that an assailant had left on the floor. In pursuit of [inmate] Menefield, Gardner ran or staggered some distance up a flight of stairs to the second floor, where he plunged the knife into the chest of a prison guard, Officer Patch. Patch died within the hour at the prison clinic, Gardner shortly afterward.

Two issues dominated the trial: the identity of Gardner's murderer or murderers, and Gardner's mental state when he attacked Patch.

The prosecution sought to prove defendant killed Gardner. It offered evidence to support two scenarios, both based on a theory that Gardner was killed in a gang dispute. One possibility was that defendant and Menefield planned to kill Gardner as part of a conflict among members of the Black Guerrilla Family (BGF), a prison gang. Gardner was the protege of Ruben Williams, the Vacaville BGF leader, with whom defendant disagreed over gang tactics. However, there was evidence that cast doubt on this possibility: defendant may have obtained the prison-made knife with which he stabbed Gardner from Williams himself. The other possibility was that defendant stabbed Gardner because he had called him a "punk nigger" in the prison yard and thereby showed disrespect to a fellow BGF member. "Punk" is prison jargon for a passive homosexual. There was testimony that the term is a serious insult to many inmates, and was intolerable to defendant.

Inmates testified they saw defendant stab Gardner repeatedly and saw Menefield restrain Gardner when he tried to escape. After the incident, witness Cade was sent to maximum security for fighting with another inmate and spoke with defendant, who was being held there as a suspect. Cade testified defendant told him that he had done the deed. Cade further testified that defendant said Gardner wanted to withdraw from the BGF and had threatened another inmate, and that Williams had ordered a "move on him" if Gardner posed a threat to the inmate. According toCade, defendant also said that after he attacked Gardner defendant ran to the third floor. Another inmate testified that he heard Menefield and defendant argue about the assault after it took place. According to that inmate, defendant asked, "Why didn't you pick up the knife?" Menefield assertedly replied, "Because I was running right behind you up the stairs." Inmate Long testified that he saw defendant stab Gardner and then run up to the third floor.

In response, defendant introduced evidence that the prosecution's key witnesses-inmates Long, Hayes, Cade, and Rooks-had won benefits from the state that gave them a motive to lie. Defendant also contended that witnesses had been housed together and had had a chance to reconcile their testimony.

Defendant did not testify at the guilt phase. He sought to prove that he was on the third floor when Gardner was stabbed. There was evidence that he had been seen at that location just after an alarm had sounded as a result of the attack and that it was impossible for him to have made his way there from the first floor in time. For its part, the prosecution introduced evidence that an agile person could run from the first floor to certain key locations in seconds and walk briskly to defendant's cell in less than one minute, and that defendant could have done so unseen.

Defendant also sought to prove that the stabbing of Gardner was not the proximate cause of his death: there was evidence that Gardner was relatively well physically on arrival at the prison clinic and died as a result of incompetent medical care.

As for Patch's killing, there was evidence that Gardner, though failing rapidly, pursued Menefield up the stairs to the second floor. Prison guards hearing the commotion rushed toward the two, seizing Menefield and, in the case of Patch, trying to secure Gardner. Gardner then stabbed Patch.

The prosecution presented expert testimony to support its theory that Gardner fell rapidly into shock from loss of blood after his stabbing and became an unconscious agent of defendant. Prison workers described Gardner as a well-behaved inmate with no innate desire to attack a guard. Defendant introduced evidence that Gardner intended to stab Patch to exact revenge on his keepers, whom he hated, and that when he attacked Patch he was physically capable of thinking for himself and merely took advantage of the opportunity presented by having a knife in hand.

2. Penalty Phase

In aggravation, the People introduced evidence of prior violent criminal activity and a prior felony conviction. In 1970, on his 17th birthday, defendant shot and killed a high school security guard, Obidee Cowart, and was convicted of first degree murder.

There was also evidence of continuing BGF membership found in defendant's cell at Soledad Prison, including a note addressed to defendant in Menefield's handwriting saying that a possible witness to Gardner's stabbing would have to be killed. Further, defendant had stabbed three inmates besides Gardner and had been caught with the paraphernalia of violence in prison.

Defendant testified at the penalty phase. In mitigation, he presented evidence bearing on background and character. He grew up virtually without social and emotional support. He was the eldest of five siblings, each of whom had a different father. His mother, an abusive alcoholic, was 15 when she gave birth to him; she never lived with defendant's father. When she drank she would neglect the children; she and the man she lived with for 13 years would burn and stab each other in front of them. Defendant would steal food for his siblings when his mother's welfare money went to buy alcohol. Defendant grew up in a dreary section of the Watts neighborhood in Los Angeles; when he was 12, his family moved to a notoriously dangerous housing project.

Defendant testified that he had not intended to kill Cowart but had acted instinctively in self-defense after the latter had pulled a gun on him. He also stated that he fell out with the BGF over its practice of assaulting people who disobeyed its rules or policies. For that reason, he said, the gang tried twice to have him killed. He learned that an inmate named Lynch had ordered a BGF attack on him, and stabbed him in revenge. He wanted to escape the BGF but had to maintain an appearance of continued adherence lest he be killed for trying to quit. He could not completely disassociate himself from the BGF until he was sent to Tehachapi Correctional Institution, a transfer he earned by good behavior. He testified that he had earned a high school equivalency degree and had taken college correspondence courses.

B. Procedural Background

In 1983, a jury found petitioner guilty of all charges: the first degree murders of Charles Gardner and Officer Patch; conspiracy to commit murder; assault by a life prisoner resulting in death; and possession of a weapon by an inmate. (RT 7922-30.² ) The jury also found true special circumstance allegations that petitioner had previously been convicted of first degree murder, that he had committed multiple murders, and that he had lain in wait to kill Mr. Gardner. (Id.) He was sentenced to death for the murder of Mr. Gardner, and to lifeimprisonment without possibility of parole for Officer Patch's killing. (RT 10,233-36.) His co-defendant, Archie Menefield, was found guilty in a joint trial of similar charges stemming from the same incident, and was sentenced to life imprisonment without possibility of parole. (RT 7922-30; 10,236-37.)

In 1992, the California Supreme Court reversed the convictions as to Officer Patch and set aside the multiple murder special circumstance. The California Supreme Court affirmed in all other respects. People v. Roberts, 2 Cal. 4th 271 (1992).

In 1995, petitioner filed his first federal habeas petition in this court. (Dkt. No. 86.) In 1998, after a determination that the petition included unexhausted claims, petitioner filed a fully exhausted petition and the case was stayed while he litigated his unexhausted claims in the California Supreme Court. (Dkt. Nos. 202, 203, 205.) In August of 1999, the California Supreme Court issued an order to show cause in the state habeas proceeding. The state Supreme Court ordered respondent to address: (1) whether the prosecutor knowingly offered perjured testimony; and (2) whether trial counsel was ineffective for failing to impeach prosecution witnesses with evidence from a corrections officer that the east grille gate to the third floor at CMF-Vacaville was not locked at all times. (Dkt. No. 412-1, ex. A.) Thereafter, in March of 2000, the California Supreme Court ordered a reference hearing on the following issues:

1. What, if any, testimony did the prosecutor at petitioner's trial induce, or attempt to induce, from inmate witnesses? And if any, from which inmates? Did the inmate witnesses discuss their testimony among themselves before trial?

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