Opinion
Case No. C 97-20847 JF, Re: Docket No. 89.
August 4, 2006
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This disposition is not designated for publication and may not be cited.
I. BACKGROUND
Petitioner Patrick L. Richardson ("Richardson") was convicted in the Monterey County Superior Court of first degree murder, Cal. Pen. Code § 187; three counts of residential burglary, Cal. Pen. Code § 212.5; burglary, Cal. Pen. Code § 459; two counts of assault with a deadly weapon, Cal. Pen. Code §§ 240, 245; unlawful penetration, Cal. Pen. Code § 289(a); and conspiracy to commit robbery, Cal. Pen. Code §§ 182, 212.5. Enhancements for use of a firearm were found to be true. On December 18, 1992, Richardson was sentenced to life without the possibility of parole, with a concurrent sentence of fifteen years and eight months. Richardson currently is incarcerated at Corcoran State Prison, California.
The facts leading up to Richardson's conviction may be summarized as follows: Lester Polk ("Polk"), John Drayton ("Drayton"), Eugene Ballance ("Ballance"), and Richardson entered the Ward family home in Monterey County, California at approximately 2:00 a.m. on June 14, 1992, while a female companion, Antannette Durr ("Durr"), waited outside in a car. The men robbed the family of a large amount of cash, mostly in $100 denominations, sexually assaulted the seventeen-year-old daughter, Roxie, and shot and killed Mr. Ward.
Mrs. Ward referred to the taller of the intruders as Richardson during her testimony, but she never testified as to how she made this identification. Roxie identified the taller intruder as Richardson because the night light in her room allowed her to see Richardson's face, which was only partially covered by a beanie type cap. Durr testified that she drove Richardson and the other three intruders to a drop-off point, where she handed Richardson his gun and he put on a beanie type cap. Durr also testified that shortly after the robbery Richardson arrived at her home out of breath, sweaty and with what appeared to be barbed-wire marks on his arms. The other three accomplices arrived shortly thereafter. According to Durr, Richardson told her that he thought he had killed someone and then later that night called Durr while the police were at her home and said, "Antannette I killed a man. I love you."
Drayton also testified that Richardson was the man wearing the beanie type cap and that after Mr. Ward was shot, Richardson emerged from the closet and said, "He tried to kill me." Durr's father, Zollie Durr ("Zollie"), testified that he discovered Richardson and the three other intruders in his daughter's bedroom at about 3:30 am on the night in question.
The police arrested Richardson and Polk the following morning in a motel room paid for with a $100 bill. Inside the room, police found $2,416, almost all in $100 denominations. While taking Richardson to a correctional van, Sergeant Kaiser heard Richardson remark to Polk, "Antanette, the bitch ratted us off." A beanie type cap was found discarded outside the Ward household. The beanie type cap was identified by Durr, Drayton, Mrs. Ward and Roxie as the one that Richardson was wearing on the night in question. Forensic testing of the hairs in the cap did not match the hairs to Richardson, but Richardson's counsel never presented this negative test information to the jury.
Forensic comparison of Polk's hairs and the hairs in the beanie cap were also negative.
Direct Appeal
Richardson's conviction was affirmed by the California Court of Appeal on October 20, 1994. Richardson contended on appeal that: (1) there was insufficient evidence to corroborate the accomplice testimony for a conviction of conspiracy; (2) there was insufficient evidence to support a finding that the unlawful penetration was a natural consequence of any conspiracy or act of aiding and abetting committed by appellant; (3) the jury instruction defining reasonable doubt deprived him of due process of law; and (4) his sentence on the unlawful penetration count and an enhancement should have been stayed under section 654 of the California Penal Code. On February 2, 1995, the California Supreme Court denied Richardson's petition for review.
Original Federal Petition
Richardson, acting pro se, filed a federal petition for writ of habeas corpus on September 24, 1997. He asked that this Court consider the claims presented to the state appellate court. Richardson also filed a motion to stay so that he could exhaust additional claims of: (1) ineffective assistance of counsel at trial and on appeal; (2) denial of due process and fair trial; (3) improper exclusion of blacks from the jury; and (4) abuse of discretion by the trial court.
On April 29, 1998, Judge Whyte dismissed as unexhausted the claim of insufficient evidence to corroborate the accomplice testimony and the claim involving a stay of sentence under section 654 of the California Penal Code. The Court also dismissed the claim regarding the jury instruction as not presenting a cognizable federal claim. Only the claim involving unlawful penetration and conspiracy was held to be cognizable. On May 7, 1998 the instant case was reassigned to the undersigned.
Motion for Leave to Amend Federal Petition
On January 19, 1999, Richardson requested that newly exhausted claims be consolidated with his pending habeas claims. Specifically, he sought to add claims of ineffective assistance of counsel at trial and on appeal. These claims were presented to the California Supreme Court in a habeas petition, which petition was summarily denied on November 24, 1998. This Court treated the request for consolidation of claims as a motion to amend the petition.
Among the amendments, Richardson sought to add the operative claim for ineffective assistance of trial counsel based on failure to use exculpatory hair sample evidence.
On May 17, 1999, Respondent filed a motion to dismiss the petition in conjunction with an opposition to Richardson's motion to amend. Respondent argued that the petition was unexhausted because the only cognizable claim in the original petition stayed by this Court was not presented to the California Supreme Court, and that the petition was untimely because it was filed after expiration of the statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Respondent further argued that the motion to amend should be denied as an abuse of the writ. On November 10, 1999, this Court denied the motion to amend and dismissed the petition without prejudice.
The ground for dismissal was that the unlawful penetration claim was unexhausted and that there were no extraordinary circumstances that would allow an unexhausted claim to be heard before a federal court. The motion to amend was denied on the grounds that adding a newly exhausted claim to an unexhausted claim would be futile because it would create a mixed petition, and that amending the petition would be an abuse of writ.
On June 7, 2002, the Ninth Circuit reversed this Court's decision and remanded the petition for further proceedings. The Ninth Circuit stated that petitioners must be provided "`the opportunity to amend their mixed petitions by striking unexhausted claims as an alternative to suffering dismissal. . . . Federal Rule of Civil Procedure 15(a) . . . applies to habeas corpus actions and requires district courts to allow amendment of mixed federal habeas petitions.'" Richardson v. Galaza, No. 00-15871 (9th Cir. 2002) (quoting Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000)). The court found the abuse of writ doctrine to be inapplicable. Accordingly, it held that Richardson should be given the opportunity to amend his petition to state only exhausted claims. The court noted that "the petition will be facially untimely [so this Court] should determine whether equitable or statutory tolling applies. If the original petition is not time-barred, [this Court] will also need to determine whether Richardson's amendment relates back to the original petition." Id. Amended Petition for Writ of Habeas Corpus:
This Court appointed counsel for Richardson on August 20, 2002. Successor counsel was substituted on June 3, 2003. On February 27, 2004, Petitioner filed the operative amended petition for writ of habeas corpus, in which he abandoned five of his six claims. The only remaining claim for relief is ineffective assistance of trial counsel based on failure to use exculpatory hair sample evidence. Richardson claims that if this evidence had been presented to the jury, the jury would have returned verdicts of not guilty to some or all of the charges against him. Richardson asserts that no procedural default has occurred, and if it has, there is cause sufficient to excuse it. Finally, Richardson argues that the original petition is not time-barred and that his current claim relates back to the original petition. In the alternative, Richardson argues that his current claim is timely because it is based on the discovery of exculpatory evidence in 1998.
On October 2, 1992, there was a forensic comparison of the hairs from the beanie type cap with Richardson's hair. The results indicated that the hairs from the cap did not match Richardson's. Richardson claims that he first became aware of the test results when he received responses to a discovery motion in June 1998.
II. DISCUSSION
A. Timeliness
As noted by the Ninth Circuit, Richardson's original petition is facially untimely because he filed the petition five months after expiration of the AEDPA's one year statute of limitations. The AEDPA, which was enacted on April 24, 1996, imposed for the first time a statute of limitations on petitions for writ of habeas corpus filed by state prisoners. A prisoner with a conviction finalized before April 24, 1996, had until April 24, 1997 to file his or her habeas petition under the AEDPA statute of limitations. Malcom v. Payne, 281 F.3d 951, 955 (9th Cir. 2002); Calderon v. United States (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997), overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). Richardson filed his petition on September 24, 1997, five months after the statute of limitations expired. Richardson argues that his petition nonetheless is timely because of equitable tolling of the original petition and relation back of the amended petition. Alternatively, Richardson argues that the evidence regarding the forensic testing of the hair samples is newly discovered evidence, which would in essence toll the statute of limitations for the instant claim.
1. Equitable Tolling of Original Petition
The statute of limitations may be equitably tolled when "extraordinary circumstances" beyond a prisoner's control make it impossible for him or her to file a petition on time. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002); Calderon (Beeler), 128 F.3d at 1288. The threshold for equitable tolling is very high and difficult to meet; the petitioner must establish "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Rasberry v. Garcia, 448 F.3d 1150 (9th Cir. 2006); Miranda, 292 F.3d at 1066. Due diligence is required of the petitioner to learn the laws. See Hizbullahankhamon v. Walker, 255 F.3d 65, 67 (2nd Cir. 2001) (holding that time in solitary confinement will not toll the statute if the petitioner does not demonstrate reasonable diligence upon his return from confinement). Furthermore, an "extraordinary circumstance" does not necessarily include transfers between prison facilities, solitary confinement, lockdowns, restricted access to the law library or the inability to secure court documents. See Lindo v. Lefever, 193 F. Supp. 2d 659, 663 (E.D.N.Y. 2002). The Ninth Circuit has tolled the AEDPA's statute of limitations in limited circumstances including instances where counsel withdrew from a case and left a paper mess that the succeeding attorney could not follow, mental incompetency of the prisoner, and prison guards failing to mail a petition correctly. See Calderon (Kelly), 163 F.3d at 541; Calderon (Beeler), 128 F.3d at 1288-89; Miles v. Prunty, 187 F.3d 1104 (9th Cir. 1999).
Richardson contends that equitable tolling applies to the instant petition for the following reasons: yard "3B" in which he originally was housed at Corcoran State Prison did not provide access to legal materials; he was transferred multiple times and each transfer was accompanied by a three week period during which he could not access his belongings; he was placed in administrative segregation; and he was subject to numerous emergency lockdowns which slowed down his legal processes. Richardson submitted a record of transfers including a transfer from Pelican Bay to Salinas Valley State Prison ("SVSP") on June 12, 1996 and a transfer from SVSP to Corcoran State Prison on March 27, 1997. See Richardson's Chronological Prison History. The record includes other transfer and intake audits, but it is entirely unclear what impact, if any, these had on Richardson's ability to file a habeas petition. Id. The only lockdowns for which Richardson provides documentation occurred in 1998 and 1999. See Motion for Extension of Time filed November 30, 1998, Ex. A; see also Motion for Extension of Time filed February 24, 1999, Ex. A. Richardson also submits a notice of administrative segregation for SVSP dated March 21, 1997. See "Order and Hearing for Placement in Segregation." It is unclear how long Richardson was held in administrative segregation, but the period likely was very short, as he transferred prisons six days after the notice of administrative segregation was implemented.
This lockdown lasted for approximately six days.
It is unknown how long the lockdown in 1999 lasted.
Based upon this record, the Court concludes that Richardson has failed to meet the high threshold for equitable tolling. He contends that he did not learn of the AEDPA's statute of limitations until he was transferred from Yard "3B" to Yard "3A," where other inmates informed him of the new statute of limitations. Ignorance of the AEDPA enactment does not constitute a ground for tolling. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Moreover, Richardson was not transferred to yard "3B" until eleven months after the AEDPA was passed. He claims that during those eleven months he was subjected to various transfers and lockdowns. However, he does not provide a declaration setting forth the exact dates of these alleged transfers and lockdowns. He does not explain how each lockdown, administrative segregation or transfer affected him and his access to legal materials. As a result, he has failed to demonstrate that the alleged lockdowns and transfers prevented him from filing a timely habeas petition. Moreover, Richardson has failed to show that he exhibited due diligence in filing his habeas petition once he became aware of the AEDPA's statute of limitations. Accordingly, Richardson's request for equitable tolling with respect to the original petition will be denied.
2. Relation Back
The Court need not address the relation back argument because there is not a timely claim to which the current claim could relate back.
3. Newly Discovered Evidence
The one year statute of limitations begins to run on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). Thus, discovery of evidence that gives rise to a new claim will commence the statute of limitations as long as the petitioner exercised due diligence to discover the evidence. Souter v. Jones, 395 F.3d 577, 587 (6th Cir. 2005); Redd v. McGrath, 343 F.3d 1077, 1083 (9th Cir. 2003). The test for newly discovered evidence "requires that the evidence `must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.'" U.S. v. Hanoum, 33 F.3d 1128, 1130 (9th Cir. 1994) (original emphasis) (quoting U.S. v. DeRewal, 10 F.3d 100, 104 (3rd Cir. 1993)). "[T]he evidence must be material to the issues involved, not merely cumulative or impeaching, and must indicate that a new trial probably would produce an acquittal." U.S. v. Lopez, 803 F.2d 969, 977 (9th Cir. 1986).
Richardson contends that the instant habeas corpus petition is based on forensic test results that did not become available to him until he received documents in response to a discovery motion in June 1998. Am'd Pet. p. 8. He argues that had the forensic test results for the hair in the beanie type cap been presented at trial, he would have been acquitted of one or more charges because he was identified at trial as the perpetrator wearing the beanie type cap. Richardson alleges that his counsel was ineffective for failing to present this information to the jury.
Richardson has failed to demonstrate that he could not have asserted his ineffective assistance claim before 1998. He does not assert ignorance that the forensic testing was done, only ignorance of the results of the testing. Am'd Pet. p. 8. However, he was present throughout his trial and thus knew that the test results were not introduced as evidence. At that point, he had sufficient information at least to inquire of his counsel why the test results were not presented.
Moreover, even if Richardson was not put on sufficient notice of his ineffective assistance claim at the time of trial, he did not exhibit due diligence in acquiring the information necessary to bring the claim. Six years elapsed between Richardson's conviction and his request for "a copy of hair sample analysis result." Richardson has not offered any explanation as to why it took him so long to request these records. Because it concludes that the claim of ineffective assistance is based upon evidence that in the exercise of due diligence could have been discovered years before the expiration of the statute of limitations in 1997, the Court concludes that the claim is time-barred. However, in light of the nature of Richardson's sentence and the lengthy procedural history of the case, the Court also will address the merits of the claim. See Branco v. Nw. Bank Minn., N.A., 381 F. Supp. 2d 1274, 1285 (D. Haw. 2005).
B. Merits
1. Legal Standard
This Court will entertain a petition for writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a State Court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d).
A state court's decision is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court reaches a decision different from that reached by the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court's decision involves an "unreasonable application" of clearly established federal law if the state court identifies the correct governing legal principle but unreasonably applies that principle to the facts of the petitioner's case. Id. "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
A state court's decision is based upon "an unreasonable determination of the facts in light of the evidence presented" when the state court fails to consider and weigh highly probative, relevant evidence, central to the petitioner's claim, that was properly presented and made part of the state-court record. Taylor v. Maddox, 366 F.3d 992, 1005 (9th Cir. 2004) This Court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Ineffective Assistance of Trial Counsel
Richardson's habeas petition asserting ineffective assistance of trial counsel was summarily denied by the California Supreme Court on November 24, 1998. Consequently there is no reasoned decision addressing the ineffective assistance claim. When there is no reasoned state court decision addressing a habeas claim, this Court must conduct an independent review of the record to determine whether the state court's decision was contrary to, or an unreasonable application of, clearly established federal law. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). The Court does not accord a state court's summary decision the same deference as a reasoned decision, because if there is no reasoned decision on the merits, "there is nothing to which to defer." Greene v. Lambert, 288 F.3d 1081, 1088-89 (9th Cir. 2002). The focus of the Court's inquiry nonetheless is whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law. Fisher v. Roe, 263 F.3d 906, 914 (9th Cir. 2001).
Richardson requests an evidentiary hearing. However an evidentiary hearing should be granted only if a petitioner can show that "the claim relies on . . . a factual predicate that could not have been previously discovered through the exercise of due diligence; and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2254(e)(2). Because Richardson has not met this burden, the Court concludes that an evidentiary hearing is unnecessary.
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance of counsel, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.
Claims of ineffective assistance of counsel are reviewed pursuant to a two-prong test established by the Supreme Court in Strickland. First, the petitioner must show that his counsel's performance was deficient. This requires showing that defense counsel made errors so serious that representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). "Review of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation." Henley v. Crist, 67 F.3d 181, 185 (9th Cir. 1995) (citation omitted). "Tactical decisions that are not objectively unreasonable do not constitute ineffective assistance of counsel." Id.
Second, the petitioner must show that the deficient performance prejudiced the defense so as to deprive the petitioner of a fair trial. Strickland, 466 U.S. at 687-88. Merely showing that the defense was impaired is insufficient. Id. at 693. The petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id. It is "well-advised to bypass scrutinizing a criminal-defense attorney's representation if the defendant cannot show that he was prejudiced by it." Weaver v. Palmateer, ___ F.3d ___, 2006 WL 1975894, at *4 (9th Cir. 2006). The Court first considers whether Richardson was prejudiced by his counsel's failure to present the forensic test results.
At trial, Richardson's defense counsel did not try to persuade the jury that Richardson was not one of the four accomplices. The defense theory was that, while Richardson was present, it was another of the intruders, Polk, who shot Ward. Counsel stated in his opening statement that:
On the night of June 14th, 1991, four men entered the Ward home. They were Eugene Ballance, John Drayton, Lester Polk, and the fourth man was this man right here. [Richardson] is, in fact, the fourth man who entered the Ward home that night. The prosecution is not going to have to prove that he was the fourth man.
The evidence in this case must be examined closely by you, probably closer than anything you've ever examined in your life, for the purpose of making a determination fairly and justly of just what crimes you believe have been proven were committed by Mr. Richardson.
RT 167-68. During closing argument, Richardson's defense counsel asked: "Who was the aggressor in this case? Who made all of the initial contacts? Who made the phone calls? Lester Polk." RT 790.
At trial, both Mrs. Ward and Roxie identified Richardson as the intruder with the handgun who was wearing a beanie type cap. According to Roxie, she was able to identify Richardson because the beanie type cap did not fully cover his face when he entered her room. She also testified that Polk had left the closet, where Ward had been struggling with the intruders, before the fatal shot was fired. The record does not state how Mrs. Ward identified Richardson. However, she did testify that Polk was in the bathroom when the fatal shot was fired in the closet. Both Mrs. Ward and Roxie affirmatively identified Polk at trial. The forensic test results might have countered this testimony to some degree, but it certainly would not have compelled a jury conclusion that Richardson was not the intruder in the beanie type cap and thus was not the shooter, particularly because the hair from the cap did not match that of Polk or any of the other intruders, and there was no dispute that Richardson was one of the participants in the crime.
There was other compelling evidence that Richardson was the shooter. Durr, the female accomplice who waited for the intruders in a get-away-car, testified that she drove the four men to a drop-off point, where she handed Richardson his handgun, and where he put on the beanie type cap. Durr also testified that after the incident, Richardson arrived at her home and told her, "I think I hurt somebody. I think I killed somebody." Richardson was out of breath, sweaty and had what appeared to be barbed-wire marks on his arms. His clothes were dirty and wet. Ballance and Drayton arrived a couple of minutes later, also out of breath and dirty. Polk then appeared banging on the Durr's front door. Polk entered the house carrying a shotgun. He too was dirty and out of breath. Durr also testified that after the four men left her home, Richardson called her and told her that he had killed a man.
Durr was given a plea bargain of second degree murder in exchange for her testimony.
Drayton, another accomplice, testified against Richardson and in exchange he was allowed to plead guilty to first degree murder. He testified that Durr drove Richardson, Polk, Ballance and Drayton to her neighborhood, and that all four men entered the Ward household through an unlocked door. Drayton identified the beanie type cap as the one Richardson was wearing. He also testified that after Ward was shot, Richardson emerged from the closet and said, "He tried to kill me."
Richardson argues that the testimonies of Drayton and Durr are not credible as they received more lenient plea bargains in exchange for their testimony. However, accomplice testimony may be relied upon if there is corroborating evidence that shows more than just "the commission of the offense; and the circumstances thereof." Cal. Penal Code § 1111. Corroboration is sufficient if:
the prosecution produce[s] independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged. Although the corroborating evidence must do more than raise a conjecture or suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant. [T]he corroborative evidence may be slight and entitled to little consideration when standing alone.People v. Lowery, 200 Cal. App. 3d 1207, 1218 (1988) (internal citations and quotations omitted). Here, there was corroborating testimony from Mrs. Ward and Roxie. The California Court of Appeal found that "[t]he most compelling evidence corroborating [Richardson's] connection with the underlying crimes was that provided by the surviving victims, both of whom identified defendant and detailed his participation in the offenses." People v. Richardson, No. 930A0413 (Cal.Ct.App. 1994). The court further stated that "[Richardson's] connection with the crimes was further corroborated by Zollie Durr's testimony which established the presence of [Richardson] and his accomplices near the crime scene shortly after the commission of the offenses, under circumstances indicative of flight, with the men in possession of a weapon corresponding to the shotgun used in the robbery-murder." Id.
Having reviewed the record, this Court agrees with the state appellate court that there is sufficient evidence, independent of the beanie cap, to corroborate the accomplices' testimony. Under the circumstances, the Court concludes that Richardson was not prejudiced by his counsel's decision not to present the forensic test results to the jury. Defense counsel told the jury in the opening remarks that Richardson was, in fact, one of the four accomplices. There was no dispute that one of the four accomplices was wearing a beanie cap. As noted previously, there is no evidence that the hairs from the cap matched those of any of the four men who entered the home. Given that the beanie cap must have been worn by one of the four men, evidence that the hairs did not match Richardson's would not have made it any less probable that Richardson was the one among the four who wore the cap. Both Mrs. Ward and Roxie identified Polk as the shorter man, not wearing the beanie cap, and stated that Polk was not in the closet when the fatal shot was fired. Mrs. Ward and Roxie also testified that neither Drayton nor Ballance were in the closet at the time of the shooting.
It is "reasonably probable" that even if the forensic test results been presented to the jury, the outcome of the case would have been the same. Accordingly, the Court concludes that Richardson was not prejudiced by his trial counsel's failure to present the forensic test results.
III. ORDER
Good cause therefore appearing, IT IS HEREBY ORDERED that the petition for writ of habeas corpus is DENIED as time-barred and without merit. The Clerk shall enter judgment and close the file.