Secrease v. Walker, 2: 09 - cv - 299 JAM TJB

SHANNON SECREASE, Petitioner,

v.JAMES WALKER, Respondent.

2: 09 - cv - 299 JAM TJB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: July 12, 2011

ORDER, FINDINGS AND

RECOMMENDATIONS

I. INTRODUCTION

Petitioner Shannon Secrease is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of life without the possibility of parole after a jury convicted him of first-degree murder and carjacking. Petitioner raises a multitude of claims in his amended federal habeas petition; specifically:

1. ineffective assistance of trial counsel for failing to present any evidence at trial ("Claim I");

2. ineffective assistance of appellate counsel by only raising three weak appellate arguments ("Claim II");3. ineffective assistance of trial counsel for failing to call Jamila King as a witness ("Claim III");

4. ineffective assistance of trial counsel for failing to call Terrence Mullins as a witness ("Claim IV");

5. ineffective assistance of trial counsel for failing to call Petitioner's mother as a witness and her refusal to use available character witnesses ("Claim V");

6. ineffective assistance of trial counsel for failing to conduct any investigation into a duress defense ("Claim VI");

7. ineffective assistance of trial counsel for failing to investigate Petitioner's mental state ("Claim VII");

8. ineffective assistance of trial counsel for failing to investigate and rebut that Petitioner had planned the crime ("Claim VIII");

9. ineffective assistance of trial counsel due to an uninformed and ill-prepared opening statement, cross-examination and voir dire ("Claim IX");

10. ineffective assistance of trial counsel for failing to object to inadmissible prosecution testimony ("Claim X");

11. ineffective assistance of trial counsel for failing to request a mistrial due to statements made by a prospective juror during voir dire ("Claim XI");

12. ineffective assistance of trial counsel in failing to advise Petitioner that the ultimate decision of whether to testify at trial was his to make ("Claim XII");

13. the cumulative effect of Petitioner's trial counsel's errors denied Petitioner a fair trial ("Claim XIII");

14. trial court error in failing to hold a People v. Marsden, 2 Cal. 3d 118, 84 Cal. Rptr. 156, 465 P.2d 44 (1970) hearing ("Claim XIV");

15. trial court error in excluding Ericc Pickett's out-of-court statements ("Claim XV");16. trial court error in excluding evidence about Ericc Pickett which showed that Petitioner had reason to fear Pickett ("Claim XVI");

17. trial court error in failing to instruct the jury on the elements of the lesser included offense of taking a vehicle under California Vehicle Code Section 10851 ("Claim XVII")

18. trial court error in impermissibly shifting the burden of proof to the Petitioner during the jury instructions ("Claim XVIII");

19. trial court error in failing to sua sponte instruct the jury on a duress defense ("Claim XIX");

20. Petitioner was denied his Constitutional right to testify on his own behalf at trial ("Claim XX");

21. there was insufficient evidence to convict Petitioner of carjacking and first-degree murder ("Claim XXI");

22. there was insufficient evidence that Petitioner acted as a major participant with reckless indifference to human life ("Claim XXII");

23. Petitioner's sentence must be vacated because the jury verdict does not reflect a special circumstance finding ("Claim XXIII");

24. Petitioner was improperly convicted of an offense not charged in the information ("Claim XXIV");

25. Petitioner's conviction for carjacking is barred as it is a necessarily included offense of the first-degree murder while engaged in the commission of a carjacking conviction ("Claim XXV"); and

26. cumulative error ("Claim XXVI").

For the following reasons, the petition should be denied.

II. PROCEDURAL HISTORY

The record reflects the following chronology of relevant proceedings:

1. On February 26, 1998, Petitioner was convicted of: (1) first-degree murder under Section 187(a) of the California Penal Code; (2) a carjacking-murder special circumstance allegation under section 190.2(a); and (3) carjacking under section 215(a), by a jury in Solano County Superior Court. (See Resp't's Answer Ex. A, at p. 134-36.) The jury found two firearm use allegations, under section 12022.5, to not be true. (Seeid. at p. 135-36.)

2. On May 21, 1998, Petitioner filed a motion pursuant to Marsden, 2 Cal. 3d 118, 84 Cal. Rptr. 156, 465 P.2d 44,¹ and a motion for a new trial, due to ineffective assistance of counsel. (See Resp't's Answer Ex. A, at p. 170.)

3. On May 28, 1998, the trial court granted the Marsden motion, relieved trial counsel (Diane Bylund), and appointed Carl Spieckerman to represent Petitioner. (Seeid. at p. 201.)

4. On July 27, 1998, the trial court denied Petitioner's motion for a new trial. (Seeid. at p. 218.)

5. On September 18, 1998, the trial court sentenced Petitioner to life without the possibility of parole on the first-degree murder conviction, and stayed the sentence on the carjacking conviction pursuant to Cal. Penal Code § 654. (See Resp't's Answer Ex. A, at p. 250.)

6. Petitioner filed a notice of appeal. (Seeid. at p. 251.)

7. On July 27, 2000, Petitioner filed his state habeas petition in the California Court of Appeal, First Appellate District. (See Resp't's Answer Exs. L, O.)

8. On August 3, 2000, the California Court of Appeal issued an order stating it would consider Petitioner's direct appeal and his state habeas petition together for decision.

(See Resp't's Answer Ex. O.)

9. On February 21, 2001, the California Court of Appeal issued a reasoned decision vacating the sentence and remanding the matter for resentencing "to allow the trial court to exercise its discretion pursuant to section 190.5, either to sentence [Petitioner] to a term of 25 years to life, or to the term of life imprisonment without the possibility of parole, as previously imposed." (Resp't's Answer Ex. I at p. 43.) "In all other respects[,] the judgment [wa]s affirmed." (Id.)

10. Also on February 21, 2001, the California Court of Appeal denied Petitioner's state habeas petition. (See Resp't's Answer Ex. O.)

11. On March 30, 2001, Petitioner filed a state habeas petition in the California Supreme Court, Case No. S096406 (See Resp't's Answer Exs. P, Q.) In that petition, Petitioner raised the following claims: (1) ineffective assistance of trial counsel for failing to request a mistrial and dismissal of the entire jury panel; and (2) ineffective assistance of trial counsel for failing to advise Petitioner that the ultimate decision over whether to testify was his to make.

12. On April 2, 2001, Petitioner filed his petition for review in the California Supreme Court, Case No. S096478 (See Resp't's Answer Exs. J, K.) In that petition for review, Petitioner raised the following issues: (1) whether a defendant's failure to personally assert his right to testify constitutes a waiver when the defendant was not advised by counsel that the decision was his alone to make and whether any such error is per se reversible or subject to harmless error analysis; (2) whether a co-defendant's statement that he acted alone is an admissible statement against interest; (3) what is the proper standard of review for determining whether a statement is against penal interest under Cal. Evid. Code § 1230; (4) does Apprendi v. New Jersey, 530 U.S. 466 (2000) overrule the California Supreme Court's holding that a special circumstance finding is not an element for purposes of determining whether anoffense is a necessarily included offense; (5) does the rule of People v. Santamaria, 8 Cal. 4th 903, 35 Cal. Rptr. 2d 624, 884 P.2d 81 (1994) - that acquittal of a weapon use allegation does not bar retrial for murder on a theory that the defendant was the actual killer - permit affirming a special circumstance finding on a theory that the defendant was the actual killer where the defendant was acquitted of personal use and the jury was instructed that if it could not determine his role it could not find the special circumstance true under an actual killer theory; (6) should the court overrule the Santamaria rule, particularly where the jury was never instructed that it could convict the defendant of felony-murder without determining the defendant's role; (7) was the evidence of carjacking and murder sufficient; (8) did the court err in failing to hold a Marsden hearing; (9) did the exclusion of the co-defendant's statements violate Petitioner's right to due process and to put on a defense; (10) did the exclusion of evidence about the co-defendant violate Petitioner's rights to due process and to put on a defense; (11) was Petitioner denied his right to effective representation; (12) did the trial court err in failing to instruct the jury on the elements of the lesser included offense of taking a vehicle; (13) did the third-party culpability instruction shift the burden of proof; (14) was the evidence of the special circumstance finding sufficient; (15) did the jury verdicts fail to reflect a special circumstance finding; (16) was the trial court's answer to the jury's question erroneous; (17) was Petitioner convicted of an uncharged offense in violation of his federal and state constitutional rights to due process; and (18) did the cumulative effect of the errors deprive Petitioner of his federal constitutional rights to due process.

13. On June 13, 2001, the California Supreme Court denied the petition for review (Case No. S096478) without comment or citation. (See Resp't's Answer Ex. K.)

14. Also on June 13, 2001, the California Supreme Court denied the state habeas petition (Case No. S096406) without comment or citation. (See Resp't's Answer Ex. Q.)15. On January 3, 2002, "the trial court once again imposed a term of life without the possibility of parole." People v. Secrease, No. A097806, 2002 WL 31769077, at *1 (Cal. Ct. App. Dec. 11, 2002).

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