Ninth Circuit Upholds Conviction in Shooting at Gas Station

Wednesday, August 27, 2008

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Ninth Circuit Upholds Conviction in Shooting at Gas Station

By KENNETH OFGANG, Staff Writer

A local man convicted earlier this decade of a robbery-murder that occurred 14 years earlier failed to exhaust state remedies and had his federal habeas corpus petition properly dismissed, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed the ruling on the petition brought by James D. Wooten, convicted of the 1988 murder of Dwayne Walker.

Walker was shot and killed at a gas station with a .38 caliber bullet fired from a revolver, and three witnesses said the gunman went through Walker’s pockets and car before fleeing, then carjacked a woman in a nearby church parking lot. The car was later abandoned.

Efforts to solve the murder were initially stymied by the inability to match fingerprints found in Walker’s car. In 2002, however, the prints were resubmitted to the state identification databank, and it was reported that they could be Wooten’s.

The three witnesses and the carjacking victim all identified Wooten—who lived near where the stolen car was found—from a 1988 photograph, albeit with different levels of certainty. Ballistics tests on a gun recovered by police after a 1996 robbery and known to belong to Wooten demonstrated that it could have been the murder weapon.

At trial, Wooten, who represented himself, argued he was not the person the witnesses saw. He noted that a man named Rene Johnson, who met the general description given by the witnesses, was found by police and brought to the scene, and that Walker—who was drifting in and out of consciousness—identified Johnson as the shooter.

Jurors, however, found Wooten guilty of first degree murder with a robbery special circumstance, and he was sentenced to life imprisonment with no possibility of parole.

On appeal, the defense argued that Los Angeles Superior Court Judge Steve C. Suzukawa, now on the Court of Appeal, should not have admitted evidence of the carjacking or the 1996 robbery, that prosecutors concealed evidence of an inconclusive gun shot residue test performed on the first suspect, that the trial judge should have given a sua sponte instruction on third party culpability, and that the special circumstance allegation should have been dismissed because there was no evidence that any property was taken from Walker.

This district’s Court of Appeal, Div. Five, affirmed with a modification in an unpublished 2004 opinion by Justice Margaret Grignon, now in private law practice.

The panel held that evidence of the carjacking was admissible to explain how the defendant fled the murder scene and because the defendant did not object to the evidence at trial, that the defendant—while objecting at trial that the gun used in 1996 was not found in his possession—did not contend that evidence it had been used in a robbery was inadmissible, and that there was sufficient evidence tying that gun to Wooten.

The justices further held that prosecutors had no obligation to disclose the GSR test results because evidence of an inconclusive test on someone else does not exculpate a defendant, that an instruction on third party culpability need not be given in the absence of a request by the defendant, and that while there may have been insufficient evidence that property was taken from the victim, all of the other elements of robbery were proven.

The panel ordered that the robbery finding be changed to a finding of attempted robbery, but otherwise affirmed the conviction and sentence.

A petition for review was denied by the California Supreme Court and a certiorari petition was denied by the U.S. Supreme Court.

In 2005, Wooten brought a habeas corpus petition in U.S. District Court in Los Angeles. He again asserted that the trial judge erroneously admitted evidence of uncharged crimes, that the prosecution should have disclosed evidence of third-party culpability, that Suzukawa should have instructed on third-party culpability, and that the special-circumstance allegation should have been dismissed.

He further argued that even if none of those asserted errors was sufficient to warrant relief in and of itself, their cumulative effect deprived him of constitutional due process.

The attorney general moved to dismiss the petition on the ground that the cumulative error claim was not raised in the petition to the state Supreme Court and was therefore unexhausted. Wooten, who was representing himself again, argued that the was “under the impression that all issues were properly exhausted,” that his appellate lawyer never advised him otherwise, and that the issue of cumulative error could not be separated from his exhausted claims.

Magistrate Judge Ralph Zarefsky recommended that the petition be dismissed as partially exhausted, or “mixed,” unless Wooten filed an amended petition deleting the cumulative error claim or moved for a stay. allow him to exhaust the cumulative error claim in state court.

Wooten then moved for a stay, but Zarefsky recommended that the stay be denied because Wooten failed to show good cause for the failure to exhaust. U.S. District Judge Ronald S.W. Lew, now in senior status, agreed and denied the stay.

The magistrate judge subsequently filed a final report and recommendation that the petition be dismissed without prejudice to the filing of an amended petition containing only exhausted claims. He noted that he had twice advised Wooten that he could amend his petition to pursue only exhausted claims, and that no amended petition had been filed.

Wooten argued, in response to the magistrate’s report, that the cumulative error claim was exhausted and that there was no need to amend. Lew disagreed and dismissed the petition.

Judge Milan D. Smith Jr. wrote for the appellate panel that the district judge did not abuse his discretion by denying the motion to stay, because the petitioner’s “impression” did not constitute good cause for failure to exhaust.

If it were, Smith wrote, “virtually every habeas petitioner, at least those represented by counsel, could argue that he thought his counsel had raised an unexhausted claim and secure a stay.” Such an approach, Smith added, would be contrary to case law holding that mixed petitions should be stayed only in “limited circumstances,” as well as to the intent of the Antiterrorism and Effective Death Penalty Act of 1996 that delays in post-conviction proceedings be discouraged and exhaustion of claims in state court be encourage.

Because Wooten lacked good cause for failing to exhaust the cumulative-error claim, Smith went on to explain, the district judge had to dismiss the petition unless the claim actually had been exhausted, or the petitioner was not given an adequate opportunity to amend. Neither of those conditions was met, the appellate jurist said.

Neither the presentation of the claim to the Court of Appeal, nor the alleged intertwining of the issues, Smith wrote, constituted compliance with the requirement that the cumulative-error claim be “fairly presented” to the Supreme Court. Given that the petitioner “had ample opportunity to amend,” Smith explained, “the well-established rule that the district court is not to retain jurisdiction over mixed petitions applies.”

Attorneys on appeal were Jeffrey D. Price fo Santa Monica for Wooten and Deputy Attorney General Carl Henry for the state.

The case is Wooten v. Kirkland, 06-56575.