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HomeMy WebLinkAboutMINUTES - 12171996 - D6 D.6 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA DATE: December 17, 1996 MATTER OF RECORD SUBJECT: Public Comment The following persons addressed the Board of Supervisors: Jim Hicks, AFSCME Local 2700, 1000 Court Street, Martinez, commented on the use of contracted temporary employees and recent labor agreements. Mr. Hicks also commented on the coverage of Board meetings on CCTV. Chairman Smith requested a report back to the Board addressing the labor issues raised. Mark Neveau, 210 Viewpoint Drive, Danville, commented on newspaper coverage regarding land development and the resulting school impacts. Lynda Balha, 140 Wayland Lane, Alamo, addressed the Board regarding the plants she has been requested to remove from County property by the Public Works Department. Ms. Balhds letter was referred to the Public Works Director for review and the Director was requested to relist this matter on a future agenda. Warren L. Smith, 1100 Bailey Road, Pittsburg, submitted to the Board members a copy of a recommendation on a decision on an evidentiary hearing in which Warren L. Smith is the petitioner. Mr. Smith commented on a incident where a County vehicle blocked his driveway and requested that the Board investigate the incident. Chairman Smith advised that the Board would investigate and respond in writing to Mr. Smith. THIS IS A MATTER FOR RECORD PURPOSES ONLY NO BOARD ACTION TART DONNA GERBER District III Supervisor Elect Contra Costa County c/o Clerk of the Board Telephone: (510) 335-1900 651 Pine Street, Room 106 Facsimile: (510) 335-1913 Martinez, CA 94553 December 17, 1996 To: Chairman, Jeff Smith Supervisor Gayle Bishop Supervisor Joe Canciamilla Supervisor Mark De Saulnier Supervisor Jim Rogers From: Donna Gerber Subject: Public Comment by Lynda Balha Regarding Plantings on the Iron Horse Trail Lynda Balha, a resident of Alamo, says she intends to speak to you during the Public Comment period of today's Board meeting. Her comments will be regarding the fact that she and her husband planted some oleanders and redwood trees next to their fence, on the trail side, of the Iron Horse Trail. They have been told by Public Works that County Policy prohibits plantings of any kind on this right-of-way, but wonder if this is an appropriate assessment. For your information, I have requested J. Michael Walford, Public Works'Director, to review the situation and to report to me after I take office in January. At that time, I will directly address Lynda's concern. DG:hf To: Contra Costa County Board of Supervisors Public Comment December 17, 1996 RECEIVE® By: Lynda Balha DEC 1 71996 140 Wayland Lane Alamo, CA 94507 CLERK BOAR t3 OF SUPERVISORS (510) 820-7733 � oN�a cosra co. My husband and I purchased the property located at 140 Wayland Lane, in Alamo, in May 1992. It is a half acre parcel which backs up to the west side of the Iron Horse Trail, about mid-way between Las Tampas and La Serena Avenue. The section of our property which adjoins the Trail extends for about 150 feet - or half the length of a football field. The fencing on this section of our yard (most of which was there when we bought the house) is composed of 5' of solid redwood, topped by 2' of lattice. By itself, the fence does very little to screen our property from the high volume of traffic on this well utilized section of the Trail. And, of course, it does nothing to screen us from the two-story apartment building and the two-story office building which are directly across the Trail from us. In the 4-1/2 years that we have owned this property, we have invested almost $18,000 in landscaping the backyard, including shrubs and vines intended to cover the lattice work, and 15 new trees along the fence line (except for one dead pine and two wild plum trees, there were no trees along the fence line when we bought this house). We have also spent in excess of $100,000 on enlarging and remodeling the residence itself. This home represents the largest financial investment we are ever likely to have. Across the trail, at the north end of our property is a two-story apartment building, screened from us originally by three large pine trees (the low wide kind). This spring, one of the pine trees died. This made us realize that if the tree closest to the center of our property were to die, we would be left to stare directly at the back of this apartment building - and the back of our house would be completely exposed as well. The negative impact such an occurrence would have on our property value was pretty sobering. We decided to plant 4 Aptos Blue .Redwood trees next to our fence, on the Trail side. We also planted 6 Oleander shrubs, which I will explain later. We decided on the redwoods because there is a stand of about 25 of them across the Trail, screening us from the office building. They are attractive, long-lived, shallow-rooted, disease resistant and maintenance free trees. We believed the redwoods would provided us with an attractive landscape barrier, as well as enhance the appearance of the Trail. It seemed like a good idea at the time. We planted the Oleanders to try and protect our fence from ongoing vandalism. Unfortunately, youths roaming the Trail seem to enjoy pulling off and kicking in the slats on fences bordering the Trail. We thought the Oleanders would be attractive, but most of all we hoped that they would keep vandals away from the fence. On November 20, 1996, I received a call from Nancy H. Wenninger, Senior Real Property Agent with the Public Works Department. Ms. Wenninger informed me that we had planted on the County's property, which we were not allowed to do, and, more importantly, that there was a high-pressure petroleum pipeline running just outside our fence and our trees and shrubs posed a "public safety" hazard. Because the existence of this pipeline was not disclosed when we purchased this property, Ms. Wenninger's call came as a shock. Naturally, having invested almost $350.00 in trees and shrubs we were now being told to remove was upsetting, but we were also frightened by Ms. Wenninger's description of the pipeline. We wrote her a letter requesting more information about the pipeline and she referred us to Santa Fe Pacific Pipelines. On December 9th, I contacted Carol E. .Dodge, Bay District Director for Santa Fe Pacific Pipelines. She was very informative and helped alleviate many of the fears that Ms. Wenninger's telephone call, and subsequent letter, had created about the pipeline's safety and stability. Ms. Dodge offered to have a Line Rider (Mr. Lynn Stade) come by and show us the location of the pipeline. He came the same day, looked at the location of our trees and shrubs, and stated that they were not a threat to the pipeline and that Santa Fe Pacific Pipeline had no objection to them. Ms. Dodge was kind enough to FAX me a letter to that effect. 2 We thought surely, armed with Santa Fe Pacific Pipeline's blessing, we would be allowed to retain our trees. We even offered to sign an agreement stating that we understood that the plantings were on County property and that future projects might necessitate their removal, and that the County retained all rights to the easement. Supervisor Bishop's office spoke to Ms. Wenninger several times on our behalf. And I spoke directly with Paul Gavey, Director of the Real Property section of the Public Works Department. On December 11`h, Donna Dawkins, Supervising Real Property Agent, called to tell me that our appeal to keep our plantings was denied. Despite the reasons set forth in Ms. Wenninger's letter of November 201h, the real reason for denial of our request, according to Ms. Dawkins, was that County policy prohibited plantings of any kind on the Right of Way. As I understand it, this policy dates back to the County's original acquisition of the former Southern Pacific Right of Way. It was thought at the time that this corridor might some day be used for a light rail system. While this is still possible, I don't think it is generally considered likely. In the interim, the Iron Horse Trail was developed. Ms. Dawkins stated that the county would like to develop a policy and guidelines for landscaping the Right of Way, but there are no funds available and she was unable to say when or if the County's policy would be reviewed. In the meantime, because Staff has no guidelines to say what is acceptable and what isn't, no one is allowed to plant anything. Clearly, we made a mistake by planting on what we now understand to be County property. We also understand that Staff is simply enforcing existing Policy; they really can't do anything else. The question is, is the Policy still appropriate? Does it reflect realistic expectations of property use? Does it serve the community? Does it allow Staff to become a catalyst for innovative solutions, or just another part of the problem? Does it encourage or discourage community/individual involvement in the development of projects that County government is no longer financially able to underwrite? We believe that the trees and shrubs we have planted, at our own expense, harm no one and benefit many. We respectfully request that they be allowed to remain until the Board has an opportunity to review current Policy and determine whether or not revisions would be appropriate. 3 ALAMO IMMOVEMEW AMOCIMON For rMe coulby P:O.BOX 271 • ALAMO,CALIFORNIA 94507 • (510)866-3606 December 14, 1996 RECEIVED Board of Supervisors DEG 17 1996 CONTRA COSTA COUNTY 651 Pine Street, Room 106 CLERK BOARD OF SUPERVISORS Martinez, California 94553 CONTRA COSTA Co Re: Reconsideration of County Policies Affecting Trees Planted Along the Iron Morse 'frail Adjacent to 140 Wayland Lane,Alamo Dear Supervisors: The Association was recently:contacted by Lynda Balha of 140 Wayland Lane in Alamo regarding a County Department of Public Works' requirement that Mr. & Mrs. Balha remove certain plantings that they had installed earlier this year along the edge of the Iron Horse Trail right-of-way adjacent to their property. According to Mrs. Balha, the plantings include 4 Redwood trees and 7 Oleander shrubs planted along the fence, 18" from the..edge of the;right=of--way and.were,- in part,-,intended,to.mitigate the loss of an existing mature Stone Pine-tree within the right=of--way-opposite-the;Balhas' property. The ,Public .Works.' Department has recently required the, removal of these plantings. The Department has apparently indicated to the Balhas that they are enforcing a County policy that no new plantings be allowed in the Iron Horse Trail right-of way, unless planted by the County, so as not to diminish the potential for the right-of-way to be used for rail transit in the future. To our knowledge however, there has been no County- installed landscaping along the right-of-way, nor has there been replacement of plantings that have died or been damaged. The Association recommends that the Board reconsider any formal or informal County policies that may exist which unnecessarily prevent beautification of the Iron Horse Trail or which may, in fact, lead to the progressive degradation of the Trail. Many portions of the Iron Horse Trail are quite barren and could be greatly improved simply by planting along the edge of the right-of-way. We realize that County funding for such activity would be,scarce: "However, as the Boulevard of Trees project has demonstrated, local citizens-are willing and able to provide funding and impetus for activities such as this which are.veryimportant to..the community. ,.The.success,:of:the.Boulevard of Trees project has indeed brought.great credit to its organizers.and.the County. ti': Board of Supervisors CONTRA COSTA COUNTY December 14, 1996 Page 2 In the case of the trees and shrubs placed by the Balhas, the Association recommends that these plantings be allowed to remain pending a Board consideration of the policy issues involved and, subsequently, that evaluation of these particular plantings be based on practical or technical considerations, rather than outright prohibition. For example, the Balhas' communication with the owner of a nearby petroleum products pipeline in the right-of-way has demonstrated that the plantings do not threaten the pipeline. In summary, the Association believes that the scenic qualities of the Iron Horse Trail can be preserved and enhanced without forcing concern aboUL lilniting tine usage of the Trail right-of-way for transit or other public purposes. The Balhas' plantings appear to pose no constraint to future use of the right-of-way and the Association believes that it would be beneficial to the public for these plantings to remain unless such a constraint is discovered and provided that the Balhas agree to maintain the plantings. The Association further requests that, as a general policy, the Board allow edge plantings along the right- of-way which do not pose practical or technical problems and also work with individuals or groups that may approach the County to collaborate in other beautification efforts for the Iron Horse Trail right-of way. Yours very truly, Cl 4Ib E, Rob Fates, President cc: Supervisor Bishop Supervisor-elect Gerber CSA R7-A East Bay Regional Park District Lynda Balha 6-18-199S 11 :57PH FRUt 1 RECEIVE®— P. DEC 71996 CLMK BOARD OF SUPERVISO Santa Fe Pacific Pipeline Partners, LX IIA COSTA CO. 1330 Arnold Drive,Suite 253,Martinez,Ca.84553 610/313-8000 FAX 810/313-0238 Santa Fe Pacific Pipelines, Inc. General Partner SFPP, L.P. Operating Partnership Carol E.Dodge December 9, 1996 Director-Bay District VIA FekX INIrs. Linda Balha 140 Wayland Ln. Alamo, CA 94507 Dear Mrs. Balha: A representative of Santa Fe Pacific Pipelines(SFPP)has inspected the location of the redwood trees planted behind your property and has determined that they are not endangering the integrity of the pipeline. The redwoods are at least four feet from the centerline of the 10- inch diameter pipe, which carries refined petroleum products from the Bay Area refineries to SFPP's terminal in San Jose. Enclosed is some information about our pipeline system. Please feel free to call nee directly if you have any questions. Sincerely, d k Carol E. Dodge Bay District Director Attachments Contra Public Works Department J. ic Watford Pubbllic WWoorks Director Costa 255 Glacier Drive County Martinez, California 94553-4897 Milton F. Kubicek y FAX: (510) 313-2333 Deputy- Engineering Telephone: (510) 313.2000 Patricia R. McNamee Deputy-Operations RECEIVED Maurice M. Shiu Deputy-Transportation . . DEC 1 7 1996 December 2, 1996 S. Clifford Hansen Deputy-Administration CLERK BOARD OF SUPERVI RS CONTRA COSTA CO. ..�. Bruce & Lynda Balha R/P - Former Southern Pacific 140 Wayland Lane Right of Way Alamo, CA 94507-1803 W. O. 5575 Dear Mr. and Mrs. Balha: In response to your letter dated November 25, 1 am writing to advise you that Santa Fe Pacific Pipelines, Inc., is the owner and operator of the high-pressure petroleum pipeline located on the County's adjacent property. They have a local office at 737 Arnold Drive, Suite A, Martinez, CA 94553. If you write to them or call them at (510) 372-6560, they will be able to answer all of your questions about the pipeline. 3 f 3 _ d 0 If you have other questions, please feel free to call me. Very truly yours, /�( ;' x 1111/1 Nancy H. V enninger Senior Real Property Agent �) NW:gpp gArealprop\temp\balha.t12 Contra Public Works Department J.Michael Watford ` Public Works Director Costa 255 Glacier Drive COUnt= ® Martinez, California 94553-4897 Milton F. Kubicek ; r Il��C'��® ' FAX: (510) 313-2333. Deputy-Engineering Telephone: (510) 313-2000 Patricia R. McNamee DEC ' � Deputy-Operations 7 December 12, 1996 Maurice M. Shiu Deputy-Transportation CLERK BOARD OF SUPERVISORS CONTRA COSTA Co. S. Clifford Hansen Deputy-Administration Lynda Balha R/P - Former Southern Pacific Right of Way 140 Wayland Lane WO 5575 Alamo, CA 94507-1803 Dear Ms. Balha: This letter will serve to summarize our telephone conversation of yesterday and provide you with notice that you will have an additional 30 days from December 20th to remove the trees and shrubs from the County's property. Paul Gavey, Nancy Wenninger and I met yesterday to discuss your situation and our department's policy on this matter. Many people have made the same request or have gone ahead and planted trees thinking, as most people would at first glance, that no one could possibly object to such an activity. You explained to me your reasons for doing this and I can certainly understand your desire to have more privacy and keep vandals away from your fence. In your situation, I would have done the same thing. But we need to look and the larger issue and our departments responsibility to maintain this huge property. The County has no funds to maintain landscaping in the right of way and trees live longer than the adjacent owners who plant them live in their houses. If we allow one person to plant in the right of way, we cannot deny others the same privilege. We would end up with an inconsistent mixture of plants that may look worse than what is currently there. As I said, if the right of way is ever landscaped, it would be with native, drought-tolerant plants and would be planned in large segments for overall aesthetics. The right of way is currently used for various major utilities and the recreational trail. Those uses could require the removal of vegetation from time to time. If the time comes for us to remove mature trees that we permitted to be planted, this would be very unpopular with a large segment of the community. There may be more utility installations in the future or maintenance of existing facilities that would not be compatible with more trees. Perhaps someday there will be funds for the provision and maintenance of trees and other plants in the right of way, either by the County or the Park District. We can all agree that it would be a welcome addition to the community. I am sorry to have to tell you to remove the trees and shrubs. Ve ly yours, Donna Dawkins Supervising Real Property Agent DD:gpp gA kealprop\tempft.tl2 November 25, 1996 RECEIVED Ms. Nancy H. Wenninger Senior Real Property Agent DEC 17 19 Public Works Department Contra Costa County ;CLERK BOARD OF SUPERVISORS 255 Glacier Drive I COEMCOSTACO. Martinez, CA 94553-4897 Dear Ms. Wenninger: Your telephone call of last week was disturbing for a number of reasons, but most specifically because of the revelation that a pipeline carrying hazardous materials exists literally outside our back gate. Since the existence of this pipeline was not disclosed at the time we purchased this property, we have a few questions: 1. When was the pipeline constructed? 2. What materials were used in its construction? 3. Who owns it? 4. What, if anything, protects it from damage due to earthquakes? 5. Who is responsible for its management and maintenance? 6. Exactly what flows through the pipeline? 7. Have there ever been any leaks, breaks, or other problems since its construction? 8. Who should we contact to give us the exact location of this pipeline in relation to our property? 9. Why was the existence of a hazardous and, according to your letter, rather fragile pipeline not disclosed at the time we purchased this property? If it is necessary for you to refer this letter to someone else for response, please advise us in writing so we will know who to follow up with. Sincerely, ce & Lynda Balha 140 Wayland Lane Alamo, CA 94507-1803 (510) 820-7733 Contra Public Works Department P Michael Watford 1'' Public Works Director Costa 255 Glacier Drive CCount Martinez, California 94553-4897 Milton F. Kubicek ounty FAX: (510) 313-2333 Deputy-Engineering RECEIVED ED - Telephone: (510) 313-2000 Patricia R. McNamee "? Deputy-Operations November 20, 1996 DEC 1 7 1996 Maurice M. Shiu Deputy-Transportation CLERK BOARD OF SUPERVISORS= S. Clifford Hansen CONTRA COSTA CO. - Deputy-Administration Bruce W. Balha R/P - Former Southern Pacific Lynda Finnerty-Balha Right of Way 140 Wayland Lane W. 0. 5575 Alamo, CA 94507 Dear Property Owners: This letter confirms today's telephone conversation regarding the redwood trees and oleanders you planted on the County's property. You may not be aware that a high- pressure petroleum pipeline is buried only four feet deep within five to ten feet of your back fence. The root systems of trees and shrubs as they grow threaten the integrity of the pipeline. For public safety reasons, please carefully remove all of the new plantings within thirty days. understand your desire to provide screening for privacy between the Iron Horse Trail and your backyard. You are welcome to plant on your side of the fence; however, please do not plant anything on the County's property without prior approval. If you have any questions or require additional information, please call me at 313-2227. Thank you for your cooperation in this matter. Very truly yours, Nancy H. enninger Senior Real Property Agent NW:gpp g:\realprop\temp\balha.t11 ' 7 Request to Speak Form ( THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: Lger Ai Address: 11 a � /L `f �A Mr., F)TT-513LflZe,- I am spealdng for nlyself--Lor organization: *,anis of ndwo CHECK ONE: 1 wish to speak on /agenda Item f_ Date: f My comments will be: _for �Ba nd 1 wish to on the of �'�� l` 1 do not wish to speak but leave these for the Board to consider: ORIGINAL 1 FILED 2 NOV 19 1996 3 CLERK U.S. STRIRD W CT KING OURT4 NORTHERN DISTRICT OF CALIFORNIA 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 WARREN L. SMITH, ) 8 Petitioner, ) No. C-93-0722 EFL (MEJ) 9 vs . ) REPORT AND RECOMMENDATION RE: . EVIDENTIARY HEARING ON 10 GERALD S. BUCK, Chief ) THE ISSUE OF INEFFECTIVE Probation Officer for ) ASSISTANCE OF COUNSEL. 11 Contra Costa County, ) 12 Respondent . ) 13 14 At bar is Petitioner' s Petition for Writ of Habeas Corpus 15 based upon the claim that Petitioner was denied effective 16 assistance of counsel at trial. 17 This Report and Recommendation shall (1) report this Court ' s 18 findings of fact regarding the proceedings at Petitioner' s trial 19 relevant to Petitioner' s claim that he was denied effective 20 assistance of counsel, and (2) present this Court ' s 21 recommendation as to whether Petitioner was denied effective 22 assistance of counsel at trial and whether Petitioner' s Petition 23 for Writ of Habeas Corpus should consequently be granted. 24 25 26 27 28 1 1 I. PROCEDURAL BACKGROUND 2 Petitioner Warren L. Smith has filed a Petition for Writ of 3 Habeas Corpus under 28 U.S.C. Section 2254 . Petitioner claims 4 ineffective assistance of counsel. 5 On April 2, 1992, Petitioner and his wife, Virginia Smith, 6 were convicted in Contra Costa County municipal court of (1) four 7 counts of illegally inhabiting a mobile home; (2) four counts of 8 maintaining a junkyard in an area zoned for agricultural use; and 9 (3) four counts of accumulating refuse. The Smiths were fined 10 $11, 271 each. The Court suspended Virginia Smith' s fine, and , 11 suspended $6, 271 of Petitioner' s fine on condition that 12 Petitioner clean up the garbage within 200 days . Petitioner was 13 also placed on two years probation. Petitioner failed to clean 14 up the garbage within 200 days whereupon the Court imposed the 15 full fine against both Petitioner and his wife. 16 Petitioner fully and unsuccessfully exhausted his state 17 remedies . 18 By Order of March 4, 1993 , Petitioner was construed to have 19 ' filed this Petition for Writ of Habeas Corpus pursuant to 28 20 U.S.C. § 2254 in the United .States District Court, before the 21 Honorable Judge Eugene V. Lynch. Petitioner' s Petition for Writ 22 of Habeas Corpus asserted two claims of constitutional error; (1) 21:-4-ineffective assistance of trial counsel; and, (2) denial of a 24 jury trial . 25 On April 26, 1995, this matter was referred for' an 26 evidentiary hearing before a United States Magistrate. The 27 purpose of the hearing was to inquire into issues relevant to 28 whether Stan Casper, Petitioner' s counsel at his criminal trial, 2 1 was ineffective and if so, whether his errors prejudiced 2 Petitioner' s trial. Petitioner' s claim regarding his right to a 3 jury trial was dismissed in the same order. 4 The case was referred to the Honorable Maria-Elena James and 5 a hearing was held on September 6th and 7th, 1995. Pre and Post- 6 Hearing briefs were submitted by Petitioner and Respondent. Both 7 parties offered witnesses and evidence. Petitioner and his 8 former attorney both testified. 9 10 II. FACTUAL BACKGROUND 11 On January 31, 1991, Contra Costa County, of the State of 12 California, filed a 20 count criminal complaint against 13 Petitioner Smith and his wife, Virginia Smith. (Criminal 14 Complaint 70934-5, filed in Municipal Court of California, County 15 of Contra Costa, Jan. 31, 1991 (hereinafter "Complaint") . ) The 16 complaint alleged (a) four counts of illegally inhabiting a 17 mobile home (counts 1-4) (Complaint pp. 1-4) ; (b) four counts of 18 maintaining a junkyard in an area zoned for agricultural use 19 (counts 5-8) (Complaint pp. 4-7) ; (c) four counts of accumulating 20 refuse (counts 9-12) (Complaint pp. 7-9) ; (d) four counts of 21 performing electrical work without a permit (counts 13-16) 22 (Complaint pp. 9-12) ; and (e) four counts of performing plumbing 23 work without a permit (counts 17-20) (Complaint pp. 12-13) . 24 Petitioner was tried before a judge. The government 25 introduced evidence from three witnesses, including photographs, 26 tending to show that (1) the property was littered with vehicles, 27 garbage, and other debris; (2) a mobile home was on the property; 28 and (3) Petitioner and Virginia Smith had not obtained a permit 3 1 for the mobile home or any electrical .or ,plumbing permits . (TR 2 13-86 .1) The government then rested. (TR 86 :23 . ) 3 The defense immediately moved for directed verdict. on counts 4 13 through 20, which dealt with the electrical and plumbing 5 permit violations. (TR 86 :26-87:11. ) This motion was granted, 6 and Petitioner was acquitted as to counts 13 through 20 . (TR 7 87 :19-88 :18 . ) 8 The defense next moved for directed verdict on counts 9 9 through 12, on the grounds that there was no evidence linking the 10 refuse to the dates alleged in the complaint. (TR 88 :20-89 :2 . ) 11 This motion was denied. (TR 89 :3-90 :9 . ) 12 The defense then proceeded with presenting its case, by 13 presenting the testimony of Petitioner. (TR 90 :16-104 : 6 . ) 14 Following Petitioner' s testimony, the defense rested. (TR 15 104 :19-20 . ) 16 Petitioner was found guilty of counts 1 through 12 . (TR i 17 107 :12-15, 111 : 6-7 . ) 18 Petitioner claims that he was denied effective assistance of 19 counsel at trial. ("First Amen. Comp. Viol. of Civ. Rts. " dated 20 9/22/93 , pp. 17-19 . ) Petitioner claims that he was denied 21 effective assistance of counsel when his attorney failed to move 22 for directed verdict on counts 1 through 122 immediately 23 24 1 "TR" shall refer to the transcript of Petitioner' s criminal trial on April 2, 1992 . 25 2 As Petitioner is appearing pro se, the Court construes 26 his petition broadly. The Supreme Court has directed federal trial courts to read pro se papers liberally, Hughes v.Rowe, 449 27 U.S. 5, 9 (1980) (per curiam) ; Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) ; Karim-Panahi v. Los Angeles Police 28 pep' t, 839 F.2d 621, 623 (9th Cir. 1988) ; Noll v. Carlson, 809 4 1 following the prosecution' s case on the grounds that the 2 prosecution had not shown that Petitioner owned or lived at the 3 property on which the violations occurred. Id. 4 In order to prevail in this case, the government had the 5iburden of presenting evidence to establish the necessary factual 6 nexus linking each defendant to each violation charged. To prove 7 counts 1-4 (illegal inhabitation of a mobile home) , the 8 government had the burden of proving that "said defendants . 9 did then and there unlawfully and willfully inhabit, not store, a 10 mobile home which was not in a lawful mobile home park . 11 (Criminal complaint filed January 31, 1991 ("complaint") at 1-4 . ) 12 To prove counts 5-8 (maintaining a junkyard on land zoned 13 for agricultural use) and 9-12 (accumulating refuse) , the 14 government had to show that "said defendants . . . did then and 15 there unlawfully and willfully store (various items] at the 16 property . . . . " (Complaint at 4-7, 7-9 . ) To prove a violation 17 of Contra Costa County Ordinance § 416-14 .204, one of the 18 19 F. 2d 1446, 1448 (9th Cir. 1987) , particularly where civil rights claims are involved. Balistreri v. Pacifica Police Dept, 901 20 F.2d 696, 699 (9th Cir. 1988) . The complaint should not be dismissed if it states a claim under any legal theory, even if 21 the plaintiff erroneously relies on a different legal theory. Radcliff v. Landau, 930 F.2d 29 (9th Cir. 1991) ; Haddock v. Bd._ 22 of Dental Examiners of Cal . , 777 F.2d 462, 464 (9th Cir. 1985) . Only if it appears beyond doubt that the plaintiff could prove no 23 set of facts in support of the claim which would entitle him to relief should the complaint be dismissed. Neitzke v. Williams, 24 490 U.S. 319 , 327 (1989) ; Haines, 404 U.S. at 520-21. In particular, although defense counsel did move for 25 acquittal of counts 9 - 12 on the grounds that there was no evidence linking the refuse to the dates in the complaint, the 26 Court interprets the petition to include an additional claim of ineffective assistance of counsel because counsel did not move 27 for acquittal of counts 9 -12 on_ the grounds that the prosecution had not shown that Petitioner owned or lived at the property in 28 question. 5 1 violations charged in counts 9-12, the government also had to 2 show that a defendant is an "owner, lessee, (or] occupant. " 3 The issues investigated by this Court include: (A) whether 4 the government established that Petitioner inhabited the property 5 in question (relating to counts 1-4 and 9-12) ; (B) whether the 6 government established that Petitioner had control over the 7 property in question (relating to counts 5-12) ; (C) whether the 8 government established that Petitioner owned the property in 9 question (relating to counts 9-12) ; (D) whether defense counsel 10 should have moved for directed verdict of all charges at the end 11 of the government ' s presentation of its case; (E) whether a nexus 12 between Petitioner and the violations on the property was 13 properly established by Respondent to support Petitioner' s 14 conviction. 15 16 III. STATEMENT OF JURISDICTION 17 On habeas review, findings of historical fact by the state 18 Court are entitled to a presumption of correctness under 28 19 U.S.C. §2254 (d) , and are reviewed for clear error. Jeffries v. 20 Blodgett, 5 F.3d 1180, 1187 (9th Cir. 1993) , reversed on other 21 grounds, Jeffries v. Wood 75 F.3d 491 (9th Cir. 1996) . A claim 22 of ineffective assistance of counsel, however, is considered a 23 mixed question of law and fact, as the answer requires the 24 application of a legal standard to historical facts . Strickland 25 v. Washington. 466 U.S. 668, 698 (1984) . A state court ' s 26 conclusions of law are not entitled to a presumption of 27 correctness, and thus claims of ineffective assistance of counsel 28 6 1 are reviewable de novo. Sanders V. Ratelle, 21 F.3d 1446, 1451 2 (9th Cir. 1994) . 3 4 IV. FINDINGS OF FACT 5 A. Inhabitation Of The Property.' 6 At the trial, Respondent called three witnesses who 7 testified and presented photographs of the condition of the 8 property in question based on their inspections. This evidence 9 tended to show that (1) the property was littered with vehicles, 10 garbage, and other debris (TR 22 :24-24 : 9, 29 :2-30 : 7, 30 :18-33•: 6) ; 11 (2) a mobile home was on the property (TR 21 :6-15) ; and (3) that 12 Petitioner had not obtained permits for the mobile home (TR 13 49 :23-51 :4) (TR 79 :23-25) , a junk yard (TR 24 :24-25 : 10) , or 14 electrical or plumbing work (TR 79 :26-80 :10) . Respondent then 15 rested. 16 Petitioner' s defense attorney then moved for directed 17 verdict on counts 13 through 20, which alleged that electrical 18 and plumbing work was performed without permits . In response, 19 Respondent argued, "We submit that since he has no permits and 20 he ' s obviously been living there for more than 20 years, that he 21 certainly must have some electricity and plumbing. " (TR 87 :13- 22 18) . The trial court responded as follows: 23 "That may be a reasonable assumption to make. On the other hand, I 'm not sure that it can be concluded that that ' s 24 where he ' s, (A) , living, or that -(B) , he even lives there . I haven' t heard testimony to that . 25 There is some evidence that there is some electrical lights 26 that were up, and that there is some connection to a propane tank that is close to this supposed mobile home. I haven' t 27 heard any testimony that that indeed is where this man lives I don' t know where he lives." (TR 87 :19-88 :3) . 28 (emphasis added) . 7 1 The trial court then acquitted Petitioner on counts 13 through 2 20 . 3 The trial court reiterated this finding in the declaration 4 submitted prior to the evidentiary hearing: 5 "As I stated on the record (p.87 :9-23) , the prosecution presented no evidence that Mr. Smith was living on the 6 property. " (Decl. Orr 2 :13-14) . 7 In Respondent ' s list of witnesses for the evidentiary 8 hearing, Respondent listed both James A. Hall (Code Enforcement 9 Officer for Contra Costa County, California) and Diana Silver 10 (Deputy County Counsel, Contra Costa, California) as witnesses 11 who would be called to testify to facts and evidence showing that 12 Petitioner lived on the subject property. (Resp't List 1 :19-25) . 13 At the evidentiary hearing, Mr. Hall presented no evidence that 14 Petitioner lived on the property. (EH 9/6/96 pp. 9-39) .3 Ms . 15 Silver did not testify. 16 B. Maintenance/Control Of The Property. , 17 At the trial, Respondent attempted to establish that 18 Petitioner maintained or exercised control of the property in 19 question. During Respondent ' s case-in-chief, James A. Hall 20 testified that on July 19, 1990, he asked Petitioner for 21 permission to come onto his property and was refused. (TR 22 :13- 22 17) . Mr. Hall also testified in response to defense counsel ' s 23 question: 24 Q: "You knew you didn' t have permission to go on his land?" 25 26 27 3 "EH" refers to the reporter' s transcript of the 28 evidentiary hearing before the Magistrate. 8 i A: "That ' s correct, sir, yes. I talked to Mr. Smith -- I believe it was August 14, 1990 . And he made it 2 extremely clear that I should never go on to his property. " (TR 42 :6-12) . 3 At the evidentiary hearing, Mr. Hall stated that on August 4 22, 1990 he telephoned Petitioner to make arrangements fora site 5 inspection: 6 Q: "Okay. What did he tell you at that time?" 7 A: "He blew up and told me that -- kind of .a number of 8 things, that I wasn' t going to come on his property or on the property without a court order. . . " (EH 9/6 9 23 :23-24 : 1) . 10 At the evidentiary hearing, Mr. Hall testified that (1) 11 Petitioner signed a registered mail receipt addressed to Virginia 12 Smith, property owner (EH 9/6 19 :1-10) ; (2) Petitioner was seen 13 on the property moving boxes (EH 9/6 25 :18-26 :8) ; (3) Petitioner 14 spoke on the telephone with him a number of times regarding the 15 property (EH 9/6 21 :8-10) ; and (4) Petitioner applied for a 16 permit for an accessory structure in 1992 after the trial (EH 9/6 17 26 : 9-15) . 18 C. Ownership Of The Property In Question At The Time The 19 Violations Occurred. 20 Respondent established at trial and at the evidentiary 21 hearing that Petitioner and Virginia Smith, then Virginia Smith 22 alone owned the property in question. At the trial James A. 23 Hall, Contra Costa County zoning investigator and planner, 24 testified and presented into evidence a copy of the county' s 25 assessor' s roll for the parcel showing Virginia Smith as the 26 owner of the property in question. (TR 18 :12-17, 19 : 18-20) . In 27 addition, a copy of a grant deed, dated July 24, 1987, 28 transferring the property from Petitioner and Virginia Smith to 9 1 Virginia Smith alone, was presented and also admitted into 2 evidence. (TR 18 :22-19 :20) . 3 The violations cited in the criminal complaint against 4 Petitioner and Virginia Smith occurred on July 19, 1990, December 5 14, 1990, January 2, 1991, and January 3, 1991, three years or 6 more after the transfer of title was completed. 7 D. Defense Counsel Did Not Move For Directed Verdict On All Charges At The End Of Respondent's Case. 8 At trial, defense counsel moved for directed verdict under 9 California Penal Code section 1118 .1 (sic) on counts .13 through 10 20, which dealt with the alleged electrical and plumbing permit 11 violations. (TR 86 :26787 : 8) The court acquitted Petitioner on 12 counts 13-20 . (TR 88 :8-18) . 13 Next, defense counsel moved for directed verdict on counts 9 14 through 12, which dealt with unlawful refuse accumulation, on the 15 grounds that there was no evidence which established that the 16 refuse was stored from July 19, 1990 through January 3 , 1991 17 (Complaint 7-9) , the period alleged in the complaint (TR 88 :20- 18 89 :3) . The court denied this motion. (TR 89 : 6-90 : 9) . Defense 19 counsel did not move for directed verdict on counts 9 through 12 20 on any other grounds. 21 Defense counsel did not move for directed verdict on counts 22 1 through 4, which alleged the unlawful installation and 23 occupancy of a mobile home, and counts 5 through 9, which alleged 24 unlawful maintenance of a junk yard. 25 At the evidentiary hearing, defense counsel, Stan Casper, 26 testified that he did not move for directed verdict on counts 1- 27 12 on the basis that the prosecution had not showed that 28 10 1 Petitioner either owned or lived on the property because 2 " . . .mountains of evidence that I knew existed linking Mr. Smith 3 to the occupation of that land. . . " (EH 9/7 43 :11-12) (emphasis 4 added) . He also testified that "I simply thought that I would be 5 aggravating, annoying, and otherwise perhaps expending needlessly 6 credibility with the Judge" by making such a motion. (EH 9/7 7 43 :13-16) . 8 E. Petitioner Testified That He Resided And Conducted Business On The Property. 9 At the trial, defense counsel called Petitioner to testify. 10 Petitioner testified that Virginia Smith held sole title to the 11 property because of an earlier conveyance made to avoid probate. 12 (TR 90 :25-91 : 9) . Petitioner also testified that he conducted 13 business on the property in his wife' s name. (TR 91 : 12-19) . On 14 cross-examination, Petitioner testified that he lived on the 15 property as a guest of Virginia Smith. (TR 98 :10-12) . 16 17 V. LEGAL STANDARDS 18. A claim of ineffective assistance of counsel is cognizable 19 as a claim of denial of the Sixth Amendment right to counsel, 20 which guarantees not only assistance, but effective assistance of 21 counsel. Strickland, 466 U.S. at 686. Under Strickland, the 22 petitioner has the burden of showing both that counsel ' s 23 performance was deficient and that specific efforts were made 24 which were unreasonable under prevailing professional norms . Id. . 25 at 687-88 . On habeas review, the Petitioner must identify the 26 "acts or omissions of counsel that are alleged not to have been 27 the result of reasonable professional judgment . " Strickland, 466 28 11 1 U.S. at 690; See also United States v. Cronic, 466 U.S. 648, 667 2 (1984) (respondent can make out a claim of ineffective assistance 3 only by pointing to specific errors made by trial counsel) . The 4 court "must indulge a strong presumption that counsel ' s conduct 5 falls within the wide range of reasonable professional 6 assistance. " . d_, at 689; Weycgandt v. Ducharme, 774 F.2d 1491, 7 1493 (9th Cir. 1985) ; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th 8 Cir. 1994) . 9 Strickland also requires the Petitioner to show prejudice . 10 Strickland, 446 U.S. at 691. The benchmark for judging any claim 11 of ineffectiveness is whether counsel ' s conduct so undermined the 12 proper functioning of the adversarial process that the trial 13 cannot be relied upon as having produced a just result. Id. at 14 486 . The Petitioner must affirmatively prove that "there is a 15 reasonable probability that, but for counsel ' s unprofessional 16 errors, the result of the proceeding would have been different, " 17 Id. at 694, and "the totality of the evidence must be 18 considered. " cel. at 695-696 . A reasonable probability is a 19 probability sufficient to undermine confidence in the outcome. 20 Id. at 694 . 21 A court reviewing a claim of ineffectiveness need not 22 address both Strickland components if the Petitioner makes an 23 insufficient showing of either one. ISL at 697 . If it is easier 24 to dispose of the claim on grounds of lack of prejudice, "which 25 we expect will often be so, " the court should dismiss the claim. 26 Id 27 Where the prosecution has presented sufficient evidence to 28 support a defendant' s conviction, a motion for directed verdict 12 1 is considered meritless, and the failure of trial counsel to move 2 for directed verdict does not constitute ineffective assistance 3 of counsel because the prejudice prong of Strickland is not met . 4 U. S. v. Moore, 921 F.2d 207 (9th Cir. 1990) ; U. S . v. Rosalez- 5 Orozco, 8 F.3d 198 (5th Cir. 1993); Wilson v. Runyon, 981 F.2d 6 981, (8th Cir. 1992) ; Maup 'n v. Smith, 785 F.2d 135 (6th Cir. 7 1986) . 8 9 IV. LEGAL ANALYSIS 10 A. Defense Counsel ' s Failure To Move For A Directed Verdict ., Constituted Deficient Performance. 11 Strickland requires that Petitioner show that defense 12 counsel ' s representation fell below an objective standard of 13 reasonableness . Strickland 466 U.S. at 688 . 14 Contra Costa County Ordinance Code section 84-68 . 804, on 15 which counts 1-4 were based, prohibits inhabiting a mobile home 16 which is not in a lawful mobile home park. The Court finds that 17 Respondent did not establish at trial, (nor clarify at the 18 evidentiary hearing) , that Petitioner lived in a mobile home on 19 the property or anywhere else on the property. Nor did 20 Respondent establish the location of Petitioner' s residence, as 21 was expressly stated by the trial court when it granted 22 Petitioner' s counsel' s motion for directed verdict on counts 13 23 through 20 : 24 "I haven' t heard any testimony that that indeed is where 25 this man (Petitioner] lives . I don't know where he lives . " (TR 87: 19-88 :3) . 26 27 28 13 1 Therefore, this Court finds that a factual nexus was not 2 established between Petitioner and the violations alleged in 3 counts 1 through 4 . 4 Contra Costa County Ordinance Code section 88-4 .206, on 5 which counts 5-8 were based, prohibits the unlawful maintenance 6 of a junkyard. This Court is in agreement with, the initial 7 analysis and conclusion reached by the Honorable Eugene F. Lynch, 8 that Respondent in its case did not establish that Petitioner was 9 in control of the property. (EFL Order for Evidentiary Hearing, 10 Apr. 27, 1995, p.7, n.2) . At trial, there was some testimony''to 11 the effect that Petitioner had denied others permission to enter 12 the property. (See TR 22 :13-17, 42 : 6-12) . While this 13 establishes some inference that Petitioner was in "control" of 14 the property, the Court finds that Respondent merely showed that 15 Petitioner had acted to exclude inspectors from the property. 16 Thus, Respondent failed to show that Petitioner had actual 17 control over the property. Accordingly, this Court finds that a 18 factual nexus was not established between Petitioner and the 19 violations alleged in counts 5 through 8 . 20 Contra Costa County Ordinance Code section 416-14 .204, on 21 which counts 9-12 were based, prohibits refuse accumulation. The 22 ordinance further requires that the Respondent show that a 23 defendant is an "owner, lessee and occupant. " This Court finds 24 that pursuant to a valid transfer of title, Virginia Smith owned 25 the property from July 19, 1990 through January 3, 1991 when the 26 violations alleged in the criminal complaint occurred. 27 (Complaint 7-9 . ) _ 28 14 1 Nor did Respondent establish at trial, nor clarify at the 2 evidentiary hearing, that Petitioner lived on the property in a 3 mobile home or anywhere else on the property. Thus, this Court 4 finds that Respondent did not show that Petitioner was either an 5 owner or inhabitant of the property. 6 The Court finds that Respondent did not establish at trial, 7 nor clarify at the evidentiary hearing, the existence of- any 8 lease associating Petitioner to the property. Hence, the Court 9 finds that Respondent failed to show that Petitioner was a 10 lessee. Accordingly, this Court finds that Respondent did not 11 establish a factual nexus between Petitioner and the violations 12 alleged in counts 9 through 12 . 13 Because a factual nexus was not established between 14 Petitioner and the violations charged in counts 1-12 during the 15 government ' s case, Respondent ' s burden of proof was not met . It 16 was only after defense counsel called Petitioner to testify at 17 trial that the necessary elements of each alleged violation were 18 established. During his testimony, Petitioner stated that he 19 lived on the property and was responsible for the violations . 20 (TR 90-104 . ) 21 Therefore, Petitioner' s defense counsel 's decision at the 22 end of the government ' s case to not make a motion for directed 23 verdict on counts 1-12 on the basis of insufficient evidence 24 falls below the objective standard of -reasonableness . Defense 25 counsel ' s testimony that he did not move for directed verdict 26 because of "mountains of evidence that I knew existed linking Mr. 27 Smith to the occupation of that land, " (EH 9/7 43 :11-12) , and 28 because he "simply thought that (he] would be aggravating, 15 1 annoying, and otherwise perhaps expending needlessly credibility 2 with the Judge, " (EH 9/7 43 :13-16) , are excuses which cannot be 3 considered reasonable exercises of professional judgment . Defense 4 counsel' s knowledge of the evidence which linked Petitioner to 5 the property is irrelevant. The prosecution had the burden of 6 presenting such evidence, and when it did not meet the burden of 7 proof, the reasonable course of action for defense counsel was to 8 move for directed verdict. "No trial strategy can be envisioned 9 for not making the motion. The defense had absolutely nothing to 10 lose. Again, the trial court very well could have concluded .that 11 the evidence was insufficient . . . . This omission deprived the 12 Petitioner of fundamental fairness . " Freeman v. Class, 911. 13 F.Supp 402, 408 (D.S.D. 1995) , aff 'd 95 F.3d 639 (8th Cir. 1996) 14 (habeas petition granted; defense counsel' s assistance held to be 15 ineffective for failure to move for directed verdict at the close 16 of the prosecution' s case where there was a possibility that the 17 motion could have been granted) . 18 Based on the foregoing analysis, this Court finds that 19 Petitioner has satisfied the first Strickland prong requiring a 20 showing that defense counsel ' s performance was deficient. 21 B. Defense Counsel's Actions Prejudiced Petitioner. 22 In addition to showing deficient performance, Strickland 23 requires Petitioner to show that counsel ' s errors were so serious 24 as to deprive Petitioner of a fair trial, in which the result is 25 reliable. Strickland, 466 U.S. at 688 . Petitioner must 26 affirmatively prove that "there is a reasonable probability that, 27 but for counsel ' s unprofessional errors, the result of the 28 16 1 proceeding would have been different, " Id at 694 and "the 2 totality of the evidence must be considered. " ZSL.- at 695-696 . 3 As stated above, Respondent failed to present evidence 4 linking Petitioner to the violations at trial . There appears to 5 be no reason why a motion for directed verdict, on the grounds 6 that there was no factual nexus between Petitioner and counts 1 - 7 12 , would not have been granted if such a motion had been made by 8 defense counsel at the close of the prosecution' s case. 9 In U. S . v. Moore, 921 F.2d 207 (9th Cir. 1990) , the Ninth 10 Circuit looked directly to the prejudice test of Strickland, and 11 found that "the lawyer' s failure to move for a directed verdict 12 did not prejudice (defendant/Petitioner] Moore because it would 13 have been meritless. " Moore, 921 7.2d at 210 (possession of gun 14 held to be sufficient evidence of intent to use force, violence, 15 or intimidation in bank robbery, thus motion for directed verdict 16 would not have been granted) . Because there was no prejudice, 17 the court found that "trial counsel represented Moore 18 competently. " Id. 19 Here, if, at the close of the government ' s case, defense 20 counsel had moved for directed verdict on counts 1-12 for failure 21 to provide a factual nexus between Petitioner and the violations, 22 the trial judge would have granted the motion, for the reasons 23 discussed above.' f _ U. S. v. Moore, 921 F.2d 207 (9th Cir. 24 25 4 The Court is in agreement with the District Court ' s opinion that the only option other than granting a motion for 26 directed verdict would have been for the trial court to allow the government to reopen its case. This Court 's evidentiary hearing 27 verified that even if the government had reopened its case, it is unlikely that 28 the government would have been able to establish, a link between 17 1 1990) . Hence, defense counsel' s failure to move for directed 2 verdict not only constituted deficient peerformance, but also 3 prejudiced Petitioner and served to deny Petitioner a fair, . 4 reliable trial. 9.= Strickland, 466 U.S. at 688 . 5 Accordingly, Court finds that" Petitioner has met his burden 6 of proof and has demonstrated that he was prejudiced by counsel 's 7 deficient performance. Accordingly, the Court finds that 8 Petitioner has satisfied the prejudice prong of Strickland. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 25 26 27 Petitioner and the charges in counts 1-12 without Petitioner' s 28 testimony. (EFL Order, April 27, 1995, p. 8 :4-8, 23-26 . ) 18 1 V. CONCLUSION AND RECOMMENDATION 2 Based on the. foregoing analysis, the Court finds that 3 Petitioner has satisfied both prongs of the Strickland test 4 showing deficient performance of defense counsel and prejudice 5 resulting from that conduct. 6 Accordingly, THIS COURT RECOMMENDS that the District Court 7 GRANT Petitioner's Writ of Habeas Corpus. 8 9 Respectfully submitted, 10 Dated: 11 M ria-E1 a James 12 United tates Magistrate Judge 13 t 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 I Copies of this Report and Recommendation were sent to: 2 Vicki H. Young, Esq. 160 West Santa Clara Street, #575 3 San Jose, CA 95113 4 Peter D. Langley, Esq. Gordon, DeFraga, Watrous, 5 and Pezzaglia, A Law Corporation 611 Las Juntas Street 6 Martinez, CA 94553 7 8 9 10 11 12- 13 14 15 16 17 18 19 20 21 22 23 - 24 25 26 27 28