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WALKER v. MARTEL
803 F.Supp.2d 1032 (2011)
Marvin Pete WALKER, Petitioner,
v.
Michael MARTEL, Acting Warden of California State Prison at San Quentin, Respondent.
No. C 94-1997 SBA.
United States District Court, N.D. California, Oakland Division.
March 31, 2011.
MEMORANDUM AND ORDER GRANTING IN PART, DENYING IN PART AND DISMISSING IN PART PETITION FOR WRIT OF HABEAS CORPUS; FINDINGS OF FACT AND CONCLUSIONS OF LAW DEATH PENALTY CASESAUNDRA BROWN ARMSTRONG, District Judge. IntroductionPetitioner was convicted and sentenced to death for murder, assault, robbery and
other crimes in August 1980. The California Supreme Court affirmed petitioner's conviction and death sentence on December 27, 1988. People v. Walker, 47 Cal.3d 605, 253 Cal.Rptr. 863, 765 P.2d 70 (1988). Petitioner's state petition for writ of habeas corpus was denied in September 1992; his petition for writ of certiorari was denied in March 1993. Walker v. California, 507 U.S. 979, 113 S.Ct. 1433, 122 L.Ed.2d 800 (1993). Petitioner filed his first federal Petition for Writ of Habeas Corpus on May 20, 1997. This court found the petition to be unexhausted in part in April 1998, and petitioner filed a second state petition for writ of habeas corpus on June 5, 1998. The California Supreme Court denied the petition on December 22, 2004, both on the merits and on various procedural grounds. Petitioner filed his Second Amended Petition for Writ of Habeas Corpus in this court on January 12, 2005. Per an order dated October 14, 2005, this court granted respondent's motion to dismiss Claims 9, 16, 19B(e), 19B(f), 19B(aa), 19B(cc) and 21 as procedurally defaulted. The parties subsequently brought cross-motions for summary judgment. Per an order dated September 28, 2007, this court granted summary judgment in favor of respondent as to Claims 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 17, 18, 19A, 19B(a), 19B(b), 19B(c), 19B(d), 19B(e), 19B(g), 19B(h), 19B(bb), 19B(dd) and 19B(ee); petitioner's motion for summary judgment with respect to the same claims was denied. A decision as to Claims 2 and 22 was deferred.
1. Claim 2C maintains that the inadequate response of petitioner's trial counsel to petitioner's shackling constituted ineffective assistance of counsel.
2. Petitioner has objected to any sub-division of his IAC claim.
3. The parties agree that AEDPA applies to this matter.
4. A difference of opinion as to trial tactics does not constitute denial of effective assistance, see United States v. Mayo, 646 F.2d 369, 375 (9th Cir.1981), and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984).
5. These threats are hereinafter referred to as the "Danny threat" and the "D.A. threat."
6. In Cox, the trial court made a record finding that the possibility of an escape attempt justified restraints, but the Ninth Circuit held that the shackling was not justified by state interests. 613 F.3d at 890-891. The "overwhelming" evidence against the Cox petitioner included his palm print at the center of the murder scene, eyewitness accounts, petitioner's inculpatory statement, gunpowder residue on his clothes, and ballistics evidence proving that a rifle in petitioner's possession was used to fire four of the bullets found at the crime scene. Id. at 891.
7. "According to data compiled by the National Center for State Courts, the average length of jury deliberations for a capital murder trial in California is 12 hours." Fry v. Pliler, 551 U.S. 112, 123 n. 2, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (Stevens, J. concurring in part and dissenting in part) (emphasis in original).
8. This claim was denied by the state court in a summary decision.
9. Because petitioner has overcome the procedural default under the cause and prejudice exception, this court need not consider the miscarriage of justice exception.
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