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2001 U.S. Dist. LEXIS 27159, *
CHAY'IM BEN-SHOLOM, a.k.a. Ryan Michael Marshall, Petitioner, vs. JEANNE WOODFORD, as Warden of San Quentin State Prison, Respondent.
Case No. CV-F-93-5531-AWI -P
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
2001 U.S. Dist. LEXIS 27159
October 5, 2001, Decided
October 5, 2001, Filed
COUNSEL: [*1] For Chay'im Ben-Sholom, also known as Ryan Michael Marshall, Petitioner: Joseph Schlesinger, LEAD ATTORNEY, Federal Public Defender, Sacramento, CA USA; Michael Robert Levine, LEAD ATTORNEY, Levine & McHenry, Portland, OR USA; Michael Snedeker, LEAD ATTORNEY, Snedeker And Short, Portland, OR USA; George Allen Couture, Federal Defender, Sacramento, CA USA; Patience Milrod, Law Office of Patience Milrod, Fresno, CA USA.
For Jill L Brown, Warden of San Quentin State Prison, Respondent: Ward Allen Campbell, California Department of Justice, Sacramento, CA USA.
For Robert L. Ayers, Jr., Warden of San Quentin State Prison, Respondent: J. Robert Jibson, LEAD ATTORNEY, Department of Justice, Attorney Generals Office, Sacramento, CA USA; Lewis Albert Martinez, LEAD ATTORNEY, Office of the Attorney General, Fresno, CA USA.
For Jeanne S. Woodford, Acting Warden of San Quentin State Prison, Respondent: J. Robert Jibson, LEAD ATTORNEY, Department of Justice, Attorney Generals Office, Sacramento, CA USA, Jean M. Marinovich, LEAD ATTORNEY, Attorney General's Office for the State of California, Sacramento, CA USA.
JUDGES: Anthony W. Ishii, United States District Judge.
OPINION BY: Anthony W. Ishii
OPINION
DEATH PENALTY CASE
MEMORANDUM [*2] DECISION AND ORDER RE: PETITIONER'S REQUEST FOR EVIDENTIARY HEARING AND MERITS RESOLUTION OF REMAINING CLAIMS
Table of Contents
I. IntroductionII. Procedural History
III. Overview of the Underlying Facts
IV. Standards of Review
A. Applicable Standard for Granting an Evidentiary Hearing
B. Applicable Standard for Authorizing Discovery
C. Standard for Determining Presumption of Correctness of
State Court Rulings
V. Ineffective Assistance of Counsel
A. Summary of the Relevant Evidence
1. Transcribed, Taped Interview of Ben-Sholom Taken on
January 25, 1985
(Exhibit 16 to Petition)
2. Transcribed, Taped Interview of Ben-Sholom
Taken on January 28, 1985
(Exhibit 17 to Petition)
3. Notes of Sergeant Harris regarding Ben-Sholom's
interview with Dr. James
Richmond on January 28, 1985 (Exhibit 18 to Petition)
4. Notes recorded by Dr. James R. Richmond during
his interview with Ben-Sholom on
January 28, 1985 (Exhibit 19 to Petition)
5. Deposition Testimony of James R. Richmond, M.D.
taken on December 20,1985
(Exhibit 20 to Petition)
6. Summary of Mr. Walton's Guilt Phase Closing
Argument (RT-13: 2225-47)
7. Summary of Mr. Alexander's Guilt Phase Closing
Argument (RT-13: [*3] 2247-70)
8. Summary of Mr. Walton's Guilt Phase Rebuttal
Argument (RT-13: 2273-91)
9. Penalty Phase Testimony of Ben-Sholom,
February 11, 1986 (RT-13: 2441-45)
10. Penalty Phase Testimony of Faye Muldworf,
February 11, 1986 (RT-13: 2409-
12, Exhibit 8 to Petition)
11. Penalty Phase Testimony of Judy Mayora
February 11, 1986 (RT-13: 2422-36,
Exhibit 9 to Petition)
12. Penalty Phase Testimony of Phyllis Marshall,
February 11, 1986 (RT-13: 2385-2408)
13. Summary of Mr. Walton's Penalty Phase Closing
Argument (RT-13: 2447-55)
14. Summary of Mr. Alexander's Penalty Phase Closing
Argument (RT-13: 2455-68)
15. Report of Interview with Faye Muldworf conducted
August 1, 1985 (Exhibit to
February 8, 2000 Declaration of Dr. Trevor Glenn)
16. Questionnaire Responses of Phyllis Marshall
concerning Ben-Sholom (Exhibit
7 to Petition)
17. Ben-Sholom's School Records (Exhibit 5 to Petition)
18. Ben-Sholom's Medical Records from the Kaweah
Medical Group (Exhibit 6 to
the Petition)
19. Case Notes for Ben-Sholom from Kings View
Counseling Center, August 25, 1980 through May
5, 1986 (Exhibit 10 to Petition)
20. Ben-Sholom's Discharge Papers from the Army
[*4] (Exhibit 11 to Petition)
21. Police Reports Pertaining to Ben-Sholom
(Exhibit 13 to Petition)
22. Juvenile Court Probation Report (Exhibit 12 to Petition)
23. Social History of Ben-Sholom prepared by Karen
Froming, Ph.D. and dated May
29, 1997 (Exhibit 4 to Petition)
24. Emergency Treatment Records of Ben-Sholom
from January 24,1985 (Exhibits
14 and 15 to Petition)
25. Various Documents Maintained by San Bernardino
County regarding Ben-Sholom's Booking and
Custody in that Municipality (Exhibit A to Ben-Sholom's
first state habeas petition)
26. Letter Report of Frank W. Kleist, M.D. dated
February 26, 1985 (Exhibit 21 to
Petition)
27. Letter Report of Frank W. Kleist, M.D. dated
March 27, 1985 (Exhibit 22 to Petition)
28. Letter Report of Trevor D. Glenn, M.D.
dated September 21, 1985 (Exhibit 24
to Petition)
29. Psychological Evaluation Report of
Yosef Geshuri, Ph.D. dated October 6, 1985
(Exhibit 25 to Petition)
30. Letter Report of Beth Rienzi, Ph.D.
dated November 4, 1985 (Exhibit 27 to
Petition)
31. Letter Report of Bernard P. Rudis, M.D.
dated January 2, 1986 (Exhibit 28 to
Petition)
32. Declaration of Trevor Glenn, M.D. dated [*5]
February 8, 2000 (filed in support of
Evidentiary Hearing Request)
33. Declaration of Beth Rienzi, Ph.D. executed
June 14, 1997 (Exhibit 1 to the
Petition)
34. Declaration of Roger Alexander executed
June 16, 1997 (Exhibit 2 to Petition)
35. Declaration of Gary Wynbrandt, M.D., executed
June 17, 1997 (Exhibit 3 to Petition)
36. Declaration of Cornelius Unruh dated August
15, 1988 attached to Ben-Sholom's
first state petition for habeas corpus relief
(Document D. 21. in the State Record)
B. Ben-Sholom's Contentions that Mr. Alexander's
Representation Was Constitutionally
and Prejudicially Ineffective
C. Analysis of the Merits of Ben-Sholom's Ineffective
Assistance of Counsel Claim
1. Ben-Sholom's Competence to Stand Trial
2. Ben-Sholom's Mental State at the Time of
the Offense to Establish Burglary,
Robbery, and First Degree Murder
3. The Availability of Mitigation Evidence
VI. Delayed Arraignment
A. Summary of the Relevant Evidence
1. Documents requested for production
2. Criminal Complaint filed against Ben-Sholom
on January 1985 (Exhibit B to Ben-Sholom's
first state habeas petition)
3. Summary of Relevant Excerpts from
Sergeant Harris' Preliminary [*6] Examination
Hearing Testimony (PHT: 17-103)
B. Analysis of the Merits of Ben-Sholom's
Delayed Arraignment Claim
VII. Fair Cross-Section Violation
A. Summary of the Relevant Evidences
1. The Jury Selection Process for Ben-Sholom's
Panel -- Excerpts from the Clerk's
and Reporter's Transcripts
2. Declaration of J. Dennis Willigan dated October 2, 1999
(Exhibit A to Ben-Sholom's
Request for Evidentiary Hearing)
B. Analysis of the Merits of Ben-Sholom's
Fair-Cross Section Violation Claim
1. The Distinctive Group Requirement.
2. The Disparity of the Distinctive Group between
the Community Population and Jury Venires.
3. The Systematic Exclusion of the Distinctive Group.
C. The Warden's Allegation of Procedural Default.
VIII. Constitutionally Invalid Death Penalty Scheme.
A. Furman v. Georgia and its progeny.
B. Applicable California law at the time of Ben-Sholom's
offense and trial.
1. The California death penalty statute.
2. Early construction of the felony murder special
circumstance by the California Supreme Court.
3. The handling of the felony murder special circumstance
at Ben-Sholom's trial.
C. Ben-Sholom's contention that the special circumstances
in the 1978 [*7] Law are over-inclusive.
1. First degree felony murders.
2. First degree method-based murders.
3. First degree premeditated murder.
D. Statistics supporting the over-inclusiveness of
the special circumstances.
E. Analysis of the Merits of Ben-Sholom's Failure to Narrow Claim.
1. Application of Teague v. Lane.
2. Validity and reliability of the offered statistical data.
a. Proper delineation of death eligible offenses.
b. Impartiality and professional qualifications of
Ben-Sholom's experts.
3. Alleged complications occasioned as a result of the
felony murder special circumstance.
a. Repeated consideration of the felony murder factor.
b. Relative culpability of felony murder.
4. Alleged absence of remedies to correct the problem of
over-inclusiveness.
a. Meaningful appellate review.
b. Specified procedural requirements.
5. The adequacy of the narrowing function provided in $190.2.
a. Limiting the death penalty to first degree murder.
b. The narrowing provisions of $190.2 are not susceptible
to a constitutional challenge.
IX. Constitutionally Inadmissible Confessions
A. Summary of the Relevant Evidence
1. Excerpt of the Transcribed, Taped Interview of Chris [*8]
Seaman Taken on January 28, 1985 (Attachment A to the
Warden's Brief on the Merits).
2. Excerpt of the Transcribed, Taped Interview of John
Calhoun Taken on January 28, 1985 (Attachment B to the
Warden's Brief on the Merits.)
3. Pertinent Testimony at Ben-Sholom's March 25-26, 1985
Preliminary Examination Hearing.
a. Summary of Sergeant Harris's Preliminary Examination
Hearing Testimony (PHT: 17-103)
b. Summary of Detective Salazar's Preliminary Examination
Hearing Testimony (PHT: 105-12)
4. Pertinent Testimony at Ben-Sholom's January 9, 1986
Suppression Motion Hearing
a. Summary of Sergeant Harris's Suppression Motion
Hearing Testimony (MT: 12-74)
b. Summary of Detective Salazar's Suppression Motion
Hearing Testimony (MT: 75-92)
c. Summary of Ben-Sholom's Suppression Motion Hearing
Testimony (MT: 92-107)
5. State Court Findings and Orders Regarding the
Admissibility of Ben-Sholom's Confessions.
a. The Trial Court's January 14, 1986 Ruling (CT-1: 165-72)
b. The Ruling of the California Supreme Court
B. Analysis of the Merits of Ben-Sholom's Challenge to
his Confessions.
1. Waiver of Counsel in Advance of the January 25, 1985
Needles Confession. [*9]
a. Improper Inducement to Waiver of the Right to Counsel
b. Physiological and Mental Capability to Waive
Constitutional Rights.
2. The Impetus for Ben-Sholom's Second Confession in
Visalia on January 28, 1985
X. Instructional Errors During Penalty Proceedings
A. Summary of the Relevant Evidence
1. Evidence and Argument Previously Summarized in Connection
with Allegations of Ineffective Assistance of Counsel.
2. Instructions Read to the Jury Concerning the
Penalty Deliberations.
3. Instructions Read to the Jury to Clarify the Definitions
of Aggravating and Mitigating Circumstances
B. Failure of the Trial Court to Instruct, Sua Sponte, on the
Substantial Domination Factor (g).
C. Effect of Allegedly Ambiguous Instructions
1. Alleged Ambiguities in the Factor (k) Catch-all Instruction.
2. Alleged Ambiguities in the Re-instruction on Aggravating
and Mitigating Circumstances
XI. Prosecutorial Misconduct
A. Summary of the Relevant Evidence
1. Mr. Walton's Closing Argument.
2. Summary of Alva Teague's Guilt Phase Testimony (RT-11: 1936-70).
3. Ben-Sholom's Taped, Transcribed Custodial Statements.
4. Finding of the California Supreme Court on Mr. Walton's
Alleged [*10] Improper Argument.
B. Analysis of the Alleged Improper Closing Argument
XII. Juror Misconduct
A. Summary of the Relevant Evidence
1. Declaration of Richard Gildez dated August 15, 1988 attached
to Ben-Sholom's first state petition for habeas corpus
relief (Document D. 21. in the State Record).
2. Declaration of Shirley Rybnikar dated December 1, 1988 attached
to Ben-Sholom's first state petition for habeas corpus
relief (Document D. 21. in the State Record)
3. Excerpts from the Jury Voir Dire.
4. Record Excerpts of Judicial Admonitions.
B. Analysis of the Juror Misconduct Claims
1. Mr. Gildez's Alleged Bias.
2. The Receipt by the Jurors of Extrinsic Evidence.
XIII. Disproportionate Sentence.
XIV. Erroneous Weighing of Aggravating and Mitigating Factors.
XV. Inadequate Appellate Review.
XVI. Order.
A. Claims for which an Evidentiary Hearing Was Sought.
B. Claims for which No Evidentiary Hearing Was Sought.
I. Introduction.
This matter is before the Court on the request of Petitioner Chay'im Ben-Sholom, formerly Ryan Michael Marshall, ("Ben-Sholom") for an evidentiary hearing as to Claims 11, 12, 14, 18, 19, and 30. Limited discovery also is requested for one of the issues raised [*11] in Ben-Sholom's moving papers. Respondent Jeanne S. Woodford, as Warden of San Quentin State Prison (the "Warden") opposes the request.
In the order scheduling the evidentiary hearing motion, the Court directed Ben-Sholom to identify the legal bases entitling him to develop additional evidence as well as offers of proof describing the specific evidence sought to be elicited, with reference to declarations already part of the Court's file or such additional declarations as Ben-Sholom may deem appropriate. Ben-Sholom has identified witnesses he intends to call at the proposed hearing, discovery he requests authorization to propound, and declarations and/or reports which serve as offers of proof so the Court can determine the propriety of permitting further evidentiary development.
In opposition to the evidentiary hearing request, the Warden contends Ben-Sholom's offers of proof are inadequate to justify an evidentiary hearing and that his allegations are insufficient, even if presumed true, to entitle him to habeas relief. The Warden additionally contends that the offered evidence was not exhausted and constitutes an abuse of the writ as to Claims 1 and 2 and that Claim 14 is procedurally [*12] defaulted.
In addition, the Court has before it the previously submitted briefs in support of and opposition to Ben-Sholom's First Amended Petition (the "Petition"). All claims and defenses are at issue and properly before the Court for merits determination.
II. Procedural History.
A number of claims alleged in Ben-Sholom's Petition have been resolved on the merits. On April 4, 1998, Claim 24 and paragraphs 20 through 25 of Claim 30 were stricken by operation of a prior order filed on March 26, 1998. On August 26, 1998, the Court granted in part the Warden's motion for judgment on the pleadings, and dismissed with prejudice Claims 3, 4, 8, 9, 10, 15, 17, 25, 26, 29, and 32, in their entirety. In the same order, the Court also dismissed with prejudice the Sixth and Eighth Amendment grounds of Claims 1, 2 and 5, the Eighth Amendment grounds of Claims 6 and 7, the Fifth and Eighth Amendment grounds of Claims 12 and 18, and the Eighth Amendment grounds of Claims 14 and 19. The remainder of Claim 14, together with Claim 13, were dismissed without prejudice and Ben-Sholom was given leave to amend these claims. On September 18, 1998, Ben-Sholom filed an amendment to the Petition re-alleging Claim 14 and adding Claim 14-A. In light of his election not to re-allege [*13] Claim 13, the Court dismissed this claim with prejudice on September 21, 1998. On December 2, 1998, the Court denied the Warden's renewed motion to dismiss amended Claim 14, but granted the motion as to Claim 14-A. The surviving claims are Claims 1, 2, 5, 6, 1, 11, 12, 14, 16, 18, 19, 20, 21, 22, 23, 27, 28, 30, and 31, except as to those portions dismissed in prior orders.
III. Overview of the Underlying Facts.
Silva Teague, a middle-aged homemaker in rural Visalia, was shot to death in her home on Wednesday, January 23, 1985. It is undisputed that Ben-Sholom fired four bullets into the base of Mrs. Teague's skull as she lay face down in her bathroom. At the time, Ben-Sholom was about six weeks shy of his nineteenth birthday.1 It is further undisputed that Ben-Sholom, at the time of the killing, was involved in what he perceived as a "military mission" with the ultimate purpose of obtaining weapons he and his companions would use as members of the Karin National Liberation Army in the country of Burma. Ben-Sholom's companions were John Calhoun, a young man of Ben-Sholom's age, and Christopher Seaman, who was a few years older. According to Ben-Sholom's account of the offense, Seaman [*14] was the "commander" of the "mission," Calhoun was next in command, and Ben-Sholom was the "point man" who was to carry out the orders. Seaman was in charge of the "mission" because he knew where the guns were kept in the Teague residence. The break-in was planned for mid-afternoon because no one was supposed to have been home. By Ben-Sholom's reckoning, the order to kill Mrs. Teague emanated from Seaman and was communicated to him by Calhoun. Ben-Sholom shot Mrs. Teague in the manner he did to ensure that her death would be painless and instantaneous.
1 His date of birth is March 11, 1966.
The three young men left with five weapons taken from the Teague residence. They planned to go to Mexico and from there to El Salvador or somewhere in South America where they then would proceed to Asia. They were apprehended in Needles, California, near the Arizona state line at approximately 1 p.m. on Thursday, January 24, 1985. Shortly after his booking, Ben-Sholom was transported to an area hospital emergency room by local authorities for treatment of high blood pressure. The anti-hypertensive medication, Inderal, was administered. Ben-Sholom contends that Inderal is known to cause depression.2
2 Inderal [*15] is indicated in the management of hypertension and angina pectoris, to reduce cardiovascular mortality, to relieve migraine headaches, and other conditions. Among the many adverse reactions are "[l]ightheadedness; mental depression manifested by insomnia, lassitude, weakness, fatigue; reversible mental depression progressing to catatonia; visual disturbances; hallucinations, vivid dreams, an acute reversible syndrome characterized by disorientation for time and place, short-term memory loss, emotional lability, slightly clouded sensorium, and decreased performance on neuropsychometrics." See Physician's Desk Reference, 3046-48 (52d Ed. 1998) (hereafter "PDR").
Investigative questioning of the three young men commenced late that same night, after Sheriff's deputies from Tulare County arrived in San Bernardino County. Of the three suspects, Ben-Sholom was the last to be questioned. His interrogation began at 1:15 a.m. on Friday, January 25, 1985, after he was awakened from his sleep. During the tape-recorded interview, Ben-Sholom acknowledged comprehension and waiver of his right to remain silent and to have counsel present. He described the offense, as set forth above, in terms of a military mission [*16] and expressed regret in having been prevented from going to Burma to fight the Communists as he had planned. Later that day, during business hours, Tulare officials obtained and served arrest warrants on the three boys, who then were transferred to the main San Bernardino County Jail where they remained until a Tulare Sheriff's van came to collect them. The van was dispatched from Tulare on Sunday, January 27, 1985. On Monday, January 28, 1985, the three suspects were returned to Visalia, the county seat for Tulare County.
On that day, however, they were not arraigned. Instead, each was re-interviewed by Sheriff's investigators. In Ben-Sholom's second custodial statement, which again was tape recorded, his right to remain silent and to have counsel present during the questioning was carefully explained on tape. During this interview, Ben-Sholom recounted how the robbery plan was conceived and what the plans were. He also graphically explained how he shot Mrs. Teague. He told investigators he felt a "little unsure" mentally, but was not delusional. He discussed his regret on this occasion in terms of having taken Mrs. Teague's life, but confirmed his awareness of what he had done at [*17] the time of the shooting.
That same day, Monday, January 28, 1985, the District Attorney's Office hired psychiatrist James R. Richmond, M.D. to interview Ben-Sholom. Dr. Richmond was retained by Deputy District Attorney Patrick O'Hara to determine whether Ben-Sholom would be able to pursue successfully a psychiatric defense at trial. Mr. O'Hara particularly was interested in the potential success of an insanity defense. During the course of Dr. Richmond's interview that night, Ben-Sholom mentioned the occurrence of several incidents that were embellishments reported in order to make himself seem more important or dangerous in the eyes of his interviewer.
At trial, and to a much greater extent in these federal proceedings, Ben-Sholom is portrayed as a lost soul, who, as the result of severely abusive treatment at the hands of his father and abandonment by his mother, had no real will or sense of identity of his own. Initially raised by his Jewish and rather permissive mother, his authoritarian and anti-Semitic father did not become a part of his life until Ben-Sholom was seven and a half years old. At that time, his father, Lonnie Marshall, convinced his mother, Phyllis Muldworf, that [*18] he had abandoned his drinking habits and wanted to marry her and be a father to their son.3