Epps v. Warden

Background

Michael Ray Epps, a state prisoner representing himself, filed a petition asking the federal court to review his conviction in Santa Clara County Superior Court. He was convicted of first-degree murder. The opinion states that Epps’s co-defendant, Jovaune Zermeno, had pleaded no contest to voluntary manslaughter and a firearm-use enhancement after plea negotiations with the prosecution.

According to the materials attached to the petition, the prosecution alleged that Epps and his associates searched for and shot the victim based on Epps’s belief that the victim had shot and attempted to rob Epps’s daughter during a drug deal. The prosecution argued that Epps supplied marijuana for his daughter to sell. The opinion states that the victim was not the person who shot Epps’s daughter, that the victim was shot by someone in Epps’s vehicle while attempting to leave a parking lot, that no firearm was recovered, and that no witness testified to seeing Epps shoot the victim.

Claims and screening analysis

The court reviewed the petition under the rules governing federal petitions challenging state convictions. At this stage, the court determines whether the petition states claims that warrant a response; it does not decide whether the petitioner ultimately will win.

Epps alleged that the prosecutor violated due process and the right to a fair trial by knowingly presenting false testimony from a witness who allegedly falsely stated that Epps bragged about committing the shooting. He also alleged misconduct during closing argument and in seeking jury instructions that allowed the jury to convict him under a theory that he was the shooter, despite the co-defendant’s plea. Liberally construing the allegations, the court found arguable prosecutorial-misconduct claims.

Epps also challenged jury instructions identified in the petition as CALCRIM 521 and CALCRIM 875. He argued that the instructions allowed the jury to convict him under an improper theory that he was the shooter because of the co-defendant’s prior plea. The court found an arguable due-process claim for instructional error.

Epps alleged that trial counsel was ineffective for failing to object to the claimed instructional error and that appellate counsel was ineffective for failing to challenge the prosecution’s and trial court’s use of alternative theories of guilt. The court found arguable ineffective-assistance claims related to those alleged failures.

Epps separately alleged that trial counsel was ineffective for failing to investigate before trial, failing to seek suppression of money seized without a warrant, arguing that evidence of Epps’s wealth from drug dealing undermined a possible motive to commit murder, and presenting a good-character defense that opened the door to damaging character evidence. Although the court questioned whether Epps could show prejudice from these alleged errors, it found that the claims warranted a response.

Order

The court ordered the respondent to file an answer within 60 days showing why the requested relief should not be granted. The respondent must include relevant portions of the previously transcribed state trial record. Instead of an answer, the respondent may file a motion to dismiss on procedural grounds. If an answer is filed, Epps may respond within 30 days after receiving it. If a motion to dismiss is filed, the opinion sets response and reply deadlines.

The order to show cause is not a final decision on the petition’s merits. The court found only that Epps stated arguable claims requiring a response. The order also states that failure to comply with court orders, including keeping the court informed of address changes, may result in dismissal of the action without prejudice.