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IN RE: Dwight David WIMBLEY, on Habeas Corpus.
PETITION for writ of habeas corpus following judgment and sentencing in the Superior Court of San Diego County, Runston G. Maino, Judge. Writ denied.
On March 9, 1988, petitioner David Wimbley was convicted of multiple sex offenses. He thereafter brought a motion to relieve counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 based largely on incompetency of counsel claims, and a motion for new trial. Those motions were denied. On June 21, 1988, Wimbley was sentenced to prison for 39 years.
His appeal (D008392) and four separate petitions for habeas corpus (D008080, D008363, D008834, D008888) were consolidated for review before this court. The petitions raised numerous issues concerning the adequacy of trial counsel. We affirmed his conviction on appeal and denied his earlier petitions. We specifically denied him relief on grounds of ineffective counsel because he failed to meet his burden of showing his trial counsel's conduct was below that expected of a reasonable attorney and that such conduct prejudiced him. (People v. Church (1989) 215 Cal.App.3d 1151, 1158, 264 Cal.Rptr. 49 citing People v. Ledesma (1987) 43 Cal.3d 171, 216–217, 233 Cal.Rptr. 404, 729 P.2d 839.)
By this petition, which is the fifth or sixth petition for habeas corpus, depending on whether one counts the petition filed in the United States District Court, Southern District of California (Civil Case No. 88–0300R(CM)) on February 25, 1988, and denied November 22, 1988, Wimbley again seeks to establish the incompetence of trial counsel; only this time he raises two new arguments for his incompetency claim. He complains trial counsel failed to seek suppression of Detective Donna Wells's testimony because her original handwritten interview notes were apparently destroyed after she prepared her typewritten report and counsel also refused to offer his or his brother's testimony in surrebuttal to explain certain ATM slips which had been found in his possession at the time of his arrest.
Both of these alleged “grounds” for arguing trial counsel incompetency have been within Wimbley's personal knowledge for the past two years. Though he has vigorously pursued other claims of ineffective assistance of counsel since April 1988, he has never raised these new “grounds” before this latest petition. He offers no valid reasons for the delay in raising these new issues.
Where a previous habeas corpus petition has been denied, the general policy is to deny the new application absent a change in the facts or law. (In re Terry (1971) 4 Cal.3d 911, 921, fn. 1, 95 Cal.Rptr. 31, 484 P.2d 1375.) It is also the rule that a petition seeking habeas relief should be filed without substantial delay. (People v. Jackson (1973) 10 Cal.3d 265, 268–269, 110 Cal.Rptr. 142, 514 P.2d 1222; In re Walker (1974) 10 Cal.3d 764, 774, 112 Cal.Rptr. 177, 518 P.2d 1129.) Wimbley has delayed two years in bringing these new arguments to the attention of any court. His inability to offer any reasons to justify the delay in raising them is understandable as the facts they are based on were well known to Wimbley at the time of trial. He has repeatedly sought since that time to litigate the same basic alleged wrong, inadequate assistance of trial counsel.
Even giving Wimbley the benefit of the doubt because he is representing himself, we find no reason to allow him to continuously petition for relief based on variations of the same basic theme. While we appreciate failures of past arguments may spur the mind to inventiveness, that is not justification for multiple habeas petitions springing from the same alleged violation. (See Sanders v. United States (1963) 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148.)
Based on this unjustified delay in raising his new arguments and in the unjustified raising of the same issue in multiple petitions, we deny his petition for habeas relief on the grounds of procedural default. (See, e.g., Wainwright v. Sykes (1977) 433 U.S. 72, 86–87, 97 S.Ct. 2497, 2506–2507, 53 L.Ed.2d 594.) Even if we were to examine the matter on the merits, there is nothing in this petition which compels the granting of relief, nor which would compel deviation from the rule barring relief for procedural default.
The surrebuttal evidence proffered by Wimbley is not only vaguely and conclusionally described in his declaration but is patently at odds with his own testimony given under oath at the trial. Before trial Wimbley offered the police two different alibis. At trial he testified in his own defense to a third alibi which placed him at his house asleep at 4:30 a.m. on the day of the assault. His brother's testimony in his defense was consistent with his alibi he was home at that time. Arguably, the bank ATM slips found in Wimbley's possession show he was at the bank in Oceanside at that time, some eight to nine miles distant.1
It is thus understandable trial counsel would not want to put Wimbley or his brother on the stand to testify as to a fourth alibi which was inconsistent with the one already given in trial in Wimbley's own defense, even if asked to do so by Wimbley. The great writ of habeas corpus should not be used to find incompetency of trial counsel for failing to participate in the presentation of false testimony.
As to the detective's notes, Wimbley offers no possible basis for suppression in his petition, nor have we found one in our independent review of the record. Trial counsel cannot be faulted for refusing to bring a spurious motion to suppress the officer's testimony. The matters concerning these notes have been known since the preliminary examination. There was no basis then, nor can we find one now, to criticize trial counsel's handling of the detective's testimony.
DISPOSITION
Because we find Wimbley's petition for habeas corpus barred by his procedural defaults, the petition is denied.
FOOTNOTES
1. The Attorney General has requested we take judicial notice of a map from the Thomas Guide (1989 edition) for San Diego County attached to the response as exhibit B. We grant the request pursuant to Evidence Code section 452, subdivisions (g) and (h). The map demonstrates the distance between the victim's home and the bank is approximately eight to nine miles, certainly not the thirty-five miles which Wimbley alleges in his declaration.
HUFFMAN, Associate Justice.
KREMER, P.J., and WIENER, J., concur.
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Docket No: No. D011978.
Decided: May 08, 1990
Court: Court of Appeal, Fourth District, Division 1, California.
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