In re Neely12/23/1993
SUPREME COURT OF CALIFORNIA
No. S015623
1993.CA.40329 ; 864 P.2d 474; 6 Cal. 4th 901; 26 Cal. Rptr. 2d 203
Decided: December 23, 1993.
IN RE CHARLES FREDERICK NEELY ON HABEAS CORPUS.
Superior Court of El Dorado County, No. 40426, Charles F. Fogerty, Judge.
Karen S. Sorensen, under appointment by the Supreme Court, for Petitioner.
John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Steve White and George Williamson, Chief Assistant Attorneys General, Arnold O. Overoye and Robert R. Anderson, Assistant Attorneys General, Lisbeth M. P. Bellet, Roger E. Venturi and Ward A. Campbell, Deputy Attorneys General, for Respondent.
Opinion by George, J., with Lucas, C. J., Mosk, Panelli, Kennard, Arabian and Baxter, JJ., Concurring. Separate Concurring opinion by Arabian, J.
George
While his appeal from a judgment imposing the death penalty was pending before this court (see People v. Neely, ante, p. 877 [ Cal. Rptr. 2d , P.2d ]), petitioner Charles Frederick Neely filed the petition for writ of habeas corpus which gave rise to the present proceeding. This petition, in part reiterating petitioner's contentions on appeal, alleged, among other claims, that numerous failings by his trial counsel deprived petitioner of his right to the effective assistance of counsel. Concluding that the petition stated a prima facie claim for relief, we issued an order to show cause returnable before this court and ordered that the matter be argued with the automatic appeal.
For the reasons discussed hereafter, we conclude that petitioner is entitled to habeas corpus relief and that the judgment must be set aside in its entirety.
I
The factual and procedural background to petitioner's conviction and sentence of death, and to the present habeas corpus proceeding, is set forth fully in the companion case of People v. Neely, supra, ante, at pages 881-892, and need not be repeated here except to note that " he victim, Bruce Chester, a realtor, conducted his business from his residence on Cameron Road in Cameron Park, where he also kept small amounts of marijuana and cocaine for his personal use. On March 15, 1982, [petitioner], Malcolm Centers, and Monte Handley robbed Chester at his residence, and [petitioner] shot and fatally wounded him." (Id., at p. 881.)
Among petitioner's allegations in the habeas corpus petition are the following: that (1) he was deprived of the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and article 1, section 15, of the California Constitution, because his trial attorney
provided deficient representation in numerous respects, including counsel's failure to seek a change of venue for petitioner's trial, conduct adequate voir dire examination of the potential jurors or exercise any of the peremptory challenges available to the defense, and investigate evidence from which counsel would have ascertained the basis for the suppression of the tape recording and transcript of a March 23, 1982, postarrest conversation between petitioner, Centers, and Handley in a sheriff's van (see People v. Neely, supra, ante, at pp. 887-888), or raise an objection to the admission of the tape recording and transcript under Massiah v. United States (1964) 377 U.S. 201, 206 [12 L.Ed.2d 246, 250, 84 S.Ct. 1199], and its progeny; and (2) he was deprived of his rights of
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