Update: The California Supreme Court has since denied this filing. On March 5th, 2020 the 9th Circuit Court of Appeals issued an order holding in abeyance Ivan’s application to file a second successive petition for writ of habeas corpus for pursuant to a new US Supreme Court ruling in McCoy vs Louisiana. (See Kilgore v. Neuschid, Case number 19-72457). The Court’s order specified resolution in Christian v. Thomas, 19-736, Carlucci v. United States, 19-71044, and Nelson v. Hill,

19-73020.

Ivan Kilgore V31306
CSP-Solano
FA3-232
P.O. Box 4000
Vacaville, Ca 95696

In the Supreme Court of the State of California

In re. Case No. S252111

Ivan Kilgore
On Habeas Corpus.

PETITIONER’S REPLY BRIEF

This brief responds to various contentions and arguments in Respondent’s brief. (“RB”) It does not reiterate issues Petitioner believes were adequately discussed in his initial habeas corpus petition, that choice does not represent any waiver.

ARGUMENT

I. Reasons for Granting the Petition

Petitioner has presented a prima facie case for relief. He has successfully argued that trial counsel violated his Sixth Amendment rights in light of McCoy v. Louisiana (2018) 584 U.S. ___, 138 S.Ct. 1500 failing to present his asserted defense of self-defense under the theory of transferred intent supported by Petitioner and other witness testimony (Petn. 7-12); and People v. Marsden for the trial court failed to adjudicate his objection to trial counsel’s continued representation. (Petn. 3-4, 13-15) Petitioner firmly asserts that McCoy changed substantive 6th Amendment law and both McCoy and Marsden justify his delayed and successive petition. (Petn. 5-6, 16) The claims are not procedurally barred and otherwise are meritorious.

A. The Habeas Corpus Petition is not Procedurally Barred

The fourth exception to the Waltreus rule, established by case law, permits Petitioner to raise in the instant petition for writ of habeas corpus an issue previously rejected on direct appeal when, as here, there has been a change in the law affecting the petitioner. In re Terry (1971) 4 Cal.3d 911, 916 (new United States Supreme Court decision justifies post appeal habeas corpus petition); In re King (1970) 3 Cal.3d 226, 229, fn. 2 (new United States Supreme Court case justified raising issue on habeas corpus even though petitioner failed to appeal); In re Jackson (19__) 61 Cal.2d. 500 (new California Supreme Court decision justified post appeal habeas corpus petition.) Petitioner here has establish, the U.S. Supreme Court decision in McCoy, found after his appeal was final, affected a change in law thereby justifying is post. appeal habeas corpus petition.

The habeas petition is not procedurally barred for it relies on the fourth exception cited in Harris, argues McCoy, supra, 138 S. Ct. 1500 substantively altered Sixth Amendment law. (Petn. 6) Thusly, habeas petition is not procedurally barred, and McCoy does constitute an exception to the rule.

1. Petitioner could not have raised the entirety of his claim on appeal and habeas

As noted above, this claim is based on a new U.S. Supreme Court law. Therefore, the Respondent’s argument on this point fails. Furthermore, it would not be until Petitioner’s litigation was well into the traverse stage of the initial Federal proceedings that he discovered his pre-trial February 11, 2003, Marsden motion, notes and transcript filed in the state court to support this claim, had been withheld from the record of appeal and appellate counsel. The clerk of the Alameda Superior Court failed to adhere to California Rules of Court, Rule 8.328(b)(2)(3), which mandates the records were to be filed in the record of appeal and provided to appellate counsel.

Here, the clerk’s omissions actively interfered with Petitioner’s efforts to raise all claims in the state court, and were an objective factor that was external to the defense that cannot fairly be attributed to Petitioner. Thusly, the McCoy and Marsden claims set forth in the instant petition were not previously raised in Petitioner’s direct appeal or habeas filing. (See. Op. People v. Kilgore (Aug. 30, 2006, A106142) WL 2501509; In re Kilgore (Aug. 30, 2006, A110317).

2. The petition is timely

The new rule of law exception to the timelessness rule articulated in Harris does apply to the instant case. Petitioner’s argument, McCoy, supra, 138 S. Ct. 1500 does represent a change in the substantive Sixth Amendment law establishing justification for the delay in bringing the instant petition.

“When a client expressly asserts that the objective of ‘his defense’ is to maintain innocence of the charge criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt. McCoy, supra, slip. Op. at p. 7, citing U.S. Const., 6th Amend. and ABA Model Rule of Professional Conduct (2016) 1.2 (a) (a “lawyer shall abide by a client’s decision concerning the objectives of the representation.). Petitioner repeatedly instructed counsel and the court that his defense was self-defense under the theory of transferred intent. (Petn. 3-7, 11-18) Instead of a trial where Petitioner was able to pursue that defense, he went to trial with an attorney who intentionally misinformed him on matters of law (i.e., transferred intent) to coax him into pursuing a mistaken identity defense theory that, ultimately, she knew would get Petitioner convicted. (Petn. 6-7, 20)

McCoy considered the scope of defendant’s Sixth Amendment right to counsel when the defendant and trial defense counsel disagree about the defense to be presented at trial. There, McCoy sought to pursue an alibi defense and that he was framed by state and federal authorities, including the trial judge and his own counsel. McCoy held “’the right to defend is personal.’” McCoy, supra, slip. Op. p. 6.

The McCoy majority discussed the right of self-representation, and that right to defend and the right to counsel were “not all or nothing” choices:

To gain assistance, a defendant need not surrender control entirely to counsel. For the Sixth Amendment, in “grant[ing] to the accused personally the right to make his defense,” “speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant.” [Citations.] Trial management is the lawyer’s province: Council provides his or her assistance by making decisions such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to come to regarding the admission of evidence.” [Citation.] Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal. [Citation.]

Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category.

McCoy, supra, slip. Op. p. 6.

McCoy explained that a defendant may insist on maintaining innocence. Doing so, is not a strategic choice about how to achieve the client’s objective. Rather, it is a choice about what the client’s objectives are, and that choice is the client’s solely. McCoy, supra, slip. Op. p. 6. “Our system of laws generally presumes that the criminal defendant, after being fully informed, knows his own best interests and does not need them dictated by the state. Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S 152, 165 (conc. Op. of Scalia, J.).

Petitioner’s case, like McCoy is distinguishable from Florida v. Nixon (2004) 543 U.S. 175. That is because in Florida v. Nixon, there was no error on the record. The defendant was aware of counsel’s course of defense theory and so “informed by counsel, neither consents nor objects….” (Id. at p. 178.) As McCoy explained, in Florida v. Nixon, “defense counsel had several times explained to the defendant a proposed guilt-phase concession strategy, but the defendant was unresponsive.” McCoy, supra, slip. Op. 1. The defendant’s “’explicit consent’” to the defense is not required by the Sixth Amendment. Ibid. But where, as here (and in McCoy), the February 11, 2003, Marsden record shows the Petitioner opposed trial counsel’s theory of defense, the Sixth Amendment right to counsel is violated. People v. Eddy (2019) ___ Cal. App.3d ___ (Case No. C085091, Op. p. 10-12)(holding McCoy applicable where Marsden records clearly demonstrate defendant objected to trial counsel’s defense theory.)

California law is in accord. For example, the plurality decision in People v. Frierson (1985) 39 Cal.3d 803, held that, even in a capital case, defense counsel cannot decline to present the defendant’s guilt defense for the purpose of saving it for the penalty phase. The defendant had wanted to present a defense of diminished capacity, but counsel declined to do so. Defense counsel brought the disagreement to the trial court’s attention. The trial court ruled that defense counsel had the authority to decline to present a defense even though the defendant disagreed. Id. at pp. 810-811. Frierson expressly held that defense counsel does not have authority to refuse to present a defense at the guilt phase “in face of a defendant’s openly expressed desire to present a defense at that stage and despite the existence of some credible evidence to support the defense.” Id. at pp. 803, 812, 817–818. This was not a choice of mere tactics (id. at p. 814), but rather an impermissible waiver of a defense. Likewise, the long-standing rule is that counsel may not argue against the client. People v. Lane (1974) 11 Cal.3d 134, 139.

Here, trial counsel’s “Proposed Jury Questionnaire Questions”, cross-examination, which implied Petitioner acted in self-defense, and closing arguments to the contrary, were tantamount to arguing against Petitioner and an admission of guilt. (Petn. 4-7) As the Seventh Circuit Court of Appeal has noted, a jury that has been promised one thing is unlikely to adopt a conflict in theory. United States ex rel. Hampton v. Leibach (7th Cir. 2003) 347 F.3d 219, 259.; see also Anderson v. Butler (1st Cir. 1988) 858 F.2d 16, 17 (murder conviction reversed because cancel failed to deliver on an opening statement promise….).

Moreover, the Respondent’s attempt to distinguish McCoy as a case on direct appeal and, thus, not applicable to final judgments on collateral review is misplaced. Under Teague v. Lane (1989) 489 U.S. 288, ___, a new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a “watershed rul[e] of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceeding.’” Whorton v. Bockton (2007) 549 U.S. 406, 414. Petitioner firmly asserts that McCoy is a substantive change in law, in that, the Supreme Court has now given explicit autonomy to the defendant to assert his defense and trial counsel may not waiver from that defense.

Furthermore, an ineffective assistance of counsel claim is the type of exception set forth in Teague, which goes to the question of fairness and accuracy of a criminal proceeding. Sheffield v. Parker (1990) 494 U.S. 484, 495, citing Gideon v. Wainwright (1963) 372 U.S. 335, ___ (holding that a defendant has the right to be represented by counsel in all criminal trials for serious offenses, to illustrate the type of rule coming within the Teague exception.) This right was violated, when the trial court failed to hear grounds “J” and “K” of Petitioner’s Marsden motion and allowed counsel to continue to misadvise Petitioner on the doctrine of transferred intent and a motion in limine. (Petn. 3-4, 11-12, 17-20); Marsden, supra, 84 Cal. Rptr at 160-161 (a judge who denies a motion for substitution of attorney solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of conduct, abuses the exercise of his discretion to determine the competency of the attorney; When a trial court fails to inquire into specific instances of counsel’s misconduct offered by a defendant before denying a motion to substitute counsel, prejudice is presumed.).

3. The petition is not successive

As demonstrated, the present petition is not successive, and Petitioner has justified the presentation of his habeas claims based on a new U.S. Supreme Court ruling. Accordingly, the present petition is not procedurally barred.

B. Petitioner is entitled to relief

McCoy held that, while some Sixth Amendment violations require a showing of prejudice, the error here is structural and requires reversal. McCoy, supra, slip. Op. p. 11-13. That is because the error: (1) “block[ed] the defendant’s right to make the fundamental choices about his own defense; and (2) the effects of the error were ‘immeasurable.’” Id. p. 12. Like the McCoy case, Petitioner “communicated to the [trial] court and counsel his opposition to presenting any other defense other than a defense of self-defense under the theory of the doctrine of transferred intent. Whereas, the trial court would “allow[] counsel to usurp control of an issue within [Petitioner’s] sole prerogative” (McCoy, supra, at p. ___) to assert this defense by misadvising him on matters of law and then coax him into presenting a mistaken identity defense she, herself, knew he would ultimately result in Petitioner’s conviction for murder. Presenting that defense was incompatible with the Sixth Amendment. Id. at p. 13.

It mattered not that the identity defense was a tactical decision or that the self-defense defense perhaps “almost certainly would have been disastrous” or “stood no chance of winning an acquittal” as the California Court of Appeal concluded in its opinion (People v. Kilgore (Aug. 30, 2006, A106142) [nonpub. Op. at pp. 26-29].). McCoy, supra,. dis. Op. of Alito, J. at p. 4; see also People v. Lopez (2018) 28 Cal.App.5th 758, ___, citing McCoy, supra and People v. Farwell (2018) 5 Cal.5th 295, ___ (“… with the guidance of McCoy and Farwell, we recognize that such a previously acceptable tactical [strategic] decision cannot override appellant’s constitutional rights and the protections in place to ensure a knowing and voluntary waiver of those rights.”)

Furthermore, Respondent’s argument that “[t]rial counsel did not admit petitioner’s guilt of the charge, unlike the defense attorney in McCoy,” is misplaced. (RB at 16.) In Farwell, the defendant was charged with gross vehicular manslaughter and misdemeanor driving on a suspended license. He stipulated to facts establishing that he was driving with a suspended license and knew that his license was suspended, effectively stipulating that he was guilty of the driving on a suspended license charge. This Court ruled that this sort of stipulation is effectively a guilty plea. It applied a “totality of the circumstances test” and found error for failure to have an on-the-record advisement and waiver of the count being stipulated to. Farwell, supra, 5 Cal. 5 at 300-306.

Here, as the Court of Appeal in Lopez held, “the facts of this case place it somewhere between the circumstances of McCoy and Farwell.” The court ended up saying that on a silent record, reversal is required: “defense counsel’s complete confession of guilt on the hit-and-run count was permissible only if based on a knowing and informed waiver by appellate of his right to trial on that count.” Lopez, supra, 28 Cal.App. 5th at ___. In other words, getting a defendant to buy into counsel’s defense of conceding some lesser counts to try to win the more serious ones is not enough. There has to be an on-the-record advisement and waiver on the counts counsel concedes.

The February 11, 2003, Marsden records clearly reflect that Petitioner wanted to testify in his own defense. (Petn. Exhibit C, p. 9; Exhibit D, p. 10); People v. Eddy (2019) ___ Cal. App.3d ___ (Case No. C085091, slip. Op. pp. 5-7.)(Marsden records establish that defendant’s right to testify was violated in face of McCoy holding.). Therefore, Petitioner’s acquiescence to trial counsel’s tactical decision to abandon the self-defense defense for an identity defense can only stand if Petitioner made a knowingly and intelligent waiver of his right to testify and call witnesses on his behalf. Farwell, supra, 5 Cal.5th at 300.

Thusly, in applying the “totality of the circumstances test,” whereas the trial court failed to adjudicate grounds “J” and “K” of Petitioner’s February 11, 2003 Marsden motion, and trial counsel gave conflicting defense theories to the jury, which was tantamount to an admission of guilt, and provided, herself, testimony that she knew Petitioner would be found guilty in pursuing the identity defense; and provided a declaration attesting to the fact that she misadvised Petitioner on crucial points in the decision-making process as to what defense to pursue, which ultimately usurped Petitioner’s autonomy to pursue a defense of self-defense under the theory of transferred intent and caused him to wave his constitutional rights to testify and call witnesses on his behalf, it cannot be said that this waiver was knowingly and intelligent and that Petitioner received a fair trial.

Accordingly, the petition has presented a prima facie case for habeas corpus relief.
Respectfully submitted,