(HC) (DP) Stankewitz v. Brown, et al, No. 1:1991cv00616 - Document 607 (E.D. Cal. 2009)
Court Description: ORDER denying 603 Motion for Reconsideration signed by Chief Judge Anthony W. Ishii on 12/10/2009. (Lundstrom, T)
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(HC) (DP) Stankewitz v. Brown, et al Doc. 607 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DOUGLAS RAY STANKEWITZ, 10 11 Petitioner, vs. 12 ROBERT WONG, Acting Warden 13 of San Quentin State Prison, Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) Case No. 1:91-cv-616-AWI DEATH PENALTY CASE Order Regarding Respondent’s Motion for Reconsideration of Order Granting Petition and Vacating December 14, 2009 Hearing 15 16 An order granting the petition for writ of habeas corpus filed by Petitioner 17 Douglas Ray Stankewitz (“Stankewitz”) was issued September 22, 2009, and 18 judgment entered concurrently. On October 1, 2009, Respondent Robert Wong 19 (“the Warden”) filed a request for stay of the judgment and a motion for 20 reconsideration, setting a hearing on the motion for Monday, December 14, 2009, 21 at 2:30 p.m. An order granting the Warden’s request for a stay of the judgment 22 pending resolution of the motion for reconsideration was issued October 15, 23 2009. Stankewitz filed an opposition to the motion for reconsideration November 24 30, 2009. 25 26 The Warden presents two objections to the order granting the petition: Dockets.Justia.com 1 1. This Court’s conclusion granting the petition fails to recognize the extent to 2 which the factual allegations relied on by the Ninth Circuit were decimated 3 on remand and misconstrues the extent to which the Ninth Circuit’s 4 prejudice assessment dictated the conclusion in light of those changed 5 facts. 6 The Warden asserts the Ninth Circuit’s opinion was rendered under the 7 assumption that Stankewitz’s allegations were true in finding that trial counsel 8 was ineffective in failing to adequately investigate and present mitigation, and 9 that it became clear on remand Stankewitz’s allegations included falsehoods, 10 misrepresentations, and exaggerations which completely undermined the claim.1 11 In light of these changes, the Warden asserts the Ninth Circuit’s conclusion that a 12 “more complete presentation” could have made a difference in Stankewitz’s 13 sentence, and that “there was a reasonable probability that the jury would not 14 have sentenced Stankewitz to death” with the presentation of this evidence, has 15 been completed undermined. 16 17 18 19 20 21 22 23 24 25 26 1 The Warden notes the following questionable allegations: (1) trial counsel’s declaration stating he had not obtained or reviewed records from Stankewitz’s first trial and appeal (which has been found to be false); (2) assertions of sexual abuse at Napa State Hospital (which have no credible support and appear based on the account of a troubled individual with no first-hand knowledge); (3) background information regarding troubled members of Stankewitz’s family and claims of abuse by, and drug and alcohol use at the hands of, those family members (which is undermined by the fact that Stankewitz lived with his family for only a few months between age six and the time of Theresa’s murder); (4) habeas experts’ assertions that Stankewitz is brain-damaged (which are contradicted by extensive psychiatric and psychological examinations finding Stankewitz did not suffer from a mental disease); (5) implication of abuse or neglect in the assertion that Stankewitz was taken to the emergency room three times before his first birthday (where records reveal two of the visits were for common maladies); (6) claim that Stankewitz witnessed the murder of one of his father’s fellow gang members (where there is no evidence of the time, place, or victim of such a murder); (7) assertion that Stankewitz was “partying” with his brother William in the days prior to Theresa’s murder (where William’s interview indicates he had not seen Stankewitz for more than a year); and (8) the lengthy social history (which was revealed to be merely a conduit for Stankewitz’s untested statements). O R econsidS tnk 2 1 The Warden contends that Stankewitz’s emotional outbursts and acts of 2 violence over the course of his life, as chronicled in the order granting the 3 petition,2 do not establish prejudice but simply confirm the numerous diagnoses 4 that Stankewitz was a sociopath. The Warden asserts there is no reasonable 5 probability that presentation of such evidence would have impacted the sentence 6 imposed by jurors in both of Stankewitz’s trials, and that it is highly improbable 7 that the failure to present this evidence was prejudicial. 8 Stankewitz responds that the Warden’s motion rehashes arguments made 9 in his brief on remand, which remain unavailing. Stankewitz urges the Court to 10 make additional findings of prejudice due to trial counsel’s failure to present 11 evidence of his sub-average intellectual functioning, his drug use around the time 12 of the crime, and further evidence of his family history. 13 Accepting the Warden’s argument that Goodwin’s review of the 14 investigation files from Stankewitz’s first trial would satisfy the performance 15 prong of Strickland, and so undermine the Ninth Circuit’s conclusion that trial 16 counsel was ineffective for failing to investigate, it does not undermine the Ninth 17 Circuit’s conclusion of prejudice: that a “more complete presentation, including 18 even a fraction of the details Stankewitz now alleges,” could have made a 19 difference in the sentence. Stankewitz v. Woodford, 365 F.3d 706, 724-725 (9th Cir. 20 2004). 21 22 2. The Court’s conclusion fails to address the significance of Schriro v. 23 24 25 26 2 The Warden requests clarification of the order granting the petition, where certain allegations are acknowledged to have questionable support, and other allegations that incorporate the same facts are not specifically mentioned. The Court’s recitation of Stankewitz’s allegations does not infer acceptance of those allegations as true, and references to facts with questionable support extend to all allegations which incorporate those facts. O R econsidS tnk 3 1 Landrigran, 550 U.S. 465 (2007) with respect to Stankewitz’s opposition of a 2 penalty phase defense. 3 The Warden observes that in rejecting Stankewitz ‘s petition in 2000, this 4 Court noted that Stankewitz was opposed to presenting any penalty defense, and 5 particularly to any defense which involved the use of family members as 6 witnesses or the use of expert witnesses. On remand, the Ninth Circuit 7 responded that Stankewitz’s purported objections to mitigating evidence appears 8 not to have been ‘informed and knowing’ since there was no evidence trial 9 counsel conducted an adequate investigation. The Warden contends, as he did in 10 his brief on remand, that it is now known trial counsel did obtain and review all 11 the evidence from the first trial and appeal, and given that Stankewitz received a 12 death sentence after his counsel at the first trial conducted a full investigation, his 13 objection was informed and knowing. The Warden argues that following the 14 Ninth Circuit’s remand, a United States Supreme Court case cast substantial 15 doubt on whether there is an informed and knowing requirement for a 16 defendant’s decision not to present mitigation. Schriro v. Landrigan, 550 U.S. 465, 17 478-79 (2007). The Warden contends that absent an informed and knowing 18 requirement, trial counsel’s acceptance of Stankewitz’s desire not to present 19 further mitigation was clearly not prejudicial. The Warden urges this Court to 20 address the issue and the impact of the Landrigan decision. 21 Stankewitz responds the Ninth Circuit already has rejected, as “belied by 22 the record,” the argument that trial counsel was justified in not presenting 23 mitigation due to Stankewitz’s alleged opposition. Further, Stankewitz notes this 24 Court found the uncontested facts were sufficient to establish prejudice from trial 25 counsel’s failure to present more than a minimal case in mitigation. Stankewitz 26 asserts the Warden has not disputed most of the basic facts regarding trial O R econsidS tnk 4 1 counsel’s performance,3 and has instead repeated the unsuccessful argument that 2 trial counsel’s failure to present available mitigation is excused by Stankewitz’ s 3 alleged objections. As noted by the Ninth Circuit and shown by the record, trial 4 counsel did introduce penalty phase witnesses, including a member of 5 Stankewitz’s family (by marriage), and a probation officer who testified briefly 6 about Stankewitz’s abuse and early institutionalizations. Stankewitz argues that 7 where trial counsel has not refrained from presenting mitigation evidence, 8 disregarding any objections by the defendant, the effect of an alleged refusal to 9 cooperate does not need to be analyzed. Hamilton v. Ayers, 583 F.3d 1100, 1119 10 (9th Cir. 2009). Stankewitz notes that while this Court found trial counsel’s 11 conduct unreasonable, the Warden’s continuing arguments on this issue have not 12 been explicitly rejected, and asserts the Court should do so now to clarify the 13 record on appeal. 14 Landrigan is distinguishable from Stankewitz’s case. Mr. Landrigan stated 15 to the trial court that he did not want mitigation presented, and when the trial 16 judge questioned counsel about available mitigation, Mr. Landrigan interrupted 17 with contradictory and damaging information. 550 U.S. at 469-470. As noted in 18 the 2000 order denying the petition, Stankewitz made appropriate and 19 understandable objections to various events during the trial, indicating he could, 20 and did, make his objections known. See Doc. 448 at p. 18-19. But despite his 21 alleged objection to the presentation of mitigation evidence, Stankewitz did not 22 3 Stankewitz asserts the following facts are not contested: (1) trial counsel did 23 not consult with counsel from the first trial, did not hire an investigator or expert to 24 25 26 prepare for trial, and did not interview any of Stankewitz’s family or any expert witnesses for possible use at trial; (2) trial counsel was practicing out of his house at the time of Stankewitz’s trial and generally did not use paralegals, investigators, or professional consultants in capital cases; and (3) regarding a capital case tried the year before Stankewitz’s trial, trial counsel admitted he never thought about hiring experts, paralegals or investigators, failed to even obtain secretarial assistance, and did everything he felt needed to be done in capital cases by himself. O R econsidS tnk 5 1 interrupt or try to sabotage trial counsel’s presentation. 2 3 The Warden’s motion for reconsideration is DENIED. The hearing set for 4 December 14, 2009, at 2:30 p.m. is vacated. The stay of judgment entered October 5 15, 2009, is vacated. The writ of habeas corpus shall issue directing the State of 6 California to vacate and set aside the death sentence in People v. Douglas Ray 7 Stankewitz, Fresno County Superior Court Case No. 227015-5, unless within 90 8 days of the date of this order, the State of California initiates proceedings to retry 9 Stankewitz’s sentence, or alternatively, re-sentences him to life without the 10 possibility of parole. 11 12 13 14 15 IT IS SO ORDERED. 16 Dated: b64h1h December 10, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 O R econsidS tnk 6
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