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Wimbley v. Borg

filed*fn*: January 19, 1993.

DWIGHT D. WIMBLEY, PETITIONER-APPELLANT,
v.
ROBERT BORG, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Southern District of California. D.C. No. CV-90-1139-K. Judith N. Keep, District Judge, Presiding

Before: Tang, Pregerson, and Alarcon, Circuit Judges.

MEMORANDUM

Dwight Wimbley appeals from the district court's denial of his state prisoner habeas corpus petition. Wimbley contends he was denied his due process right to a fair trial by the admission of inculpatory automated teller machine (ATM) slips into evidence without first allowing him adequate time to prepare a defense. Wimbley also contends he was denied effective assistance of counsel because his attorney failed to offer documentary evidence that Wimbley's true blood type is B, but the Sheriff Department's crime laboratory reported it as O. We review the district court's denial of the writ de novo. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir. 1991).

I.

Lisa H. was raped on July 31, 1987. The attack started around 2:00 AM and ended at about 4:00 AM when her assailant left her apartment. Although she never saw her assailant, she recognized his voice and speech patterns, identifying Wimbley, whom she already knew, as the rapist. Police arrested Wimbley on August 3, 1987. He denied he raped Lisa. A search of Wimbley's car revealed a can of puppy housebreaking spray that was reportedly missing from the crime scene. Wimbley was then charged with numerous offenses arising out of the attack on Lisa.

The laboratory report from the San Diego Sheriff's Department Regional Crime Laboratory indicates that both Lisa and Wimbley have type O blood and that their saliva shows no evidence of ABO blood group factors -- that is, they are both nonsecretors. It also indicates that samples of the rapist's semen taken from Lisa show the rapist is a nonsecretor. Because of these findings, the lab concluded that Wimbley could not be eliminated as a suspect in the rape. Wimbley's military records indicate he has B blood. Neither the laboratory report nor the military records were introduced into evidence below.

Over the objection of his counsel, Wimbley testified at trial. He denied being out of his house at 4:30 AM on July 31, 1987. When asked where he banked, he replied he banked with Southwest Bank in Oceanside and used to have an instant teller card, but did not know where it was.

In rebuttal, the prosecution called a police officer who testified that the evidence bag contained three yellow ATM slips taken from Wimbley at the time of his arrest. The slips indicated transactions at Southwest Bank at 4:39 AM and 4:40 AM on July 31, 1987. Defense counsel objected to the ATM slips coming into evidence for the jury to view. After an off-the-record chambers conference, the court continued the matter from Friday until Monday afternoon to give Wimbley time to prepare a defense. On Monday, defense counsel conceded that additional bank records would not help Wimbley's cause. Counsel asked for a second continuance to bring in an expert to testify concerning a new defense, that Wimbley must have been in a drunken stupor when he made the withdrawals from the ATM machine and did not recall that he made them. The trial court denied a second continuance. Wimbley now claims one ATM slip came from a branch at 3804 Plaza in Oceanside while the other came from a branch at 1801 South Hill in Oceanside.

Wimbley was convicted of rape, sodomy, oral copulation, foreign object penetration, assault with a deadly weapon, and malicious removal of a telephone wire. He was sentenced to 39 years in prison, and is currently in custody.

Wimbley's direct appeal and his four petitions for writ of habeas corpus were consolidated before the California Court of Appeal, which affirmed the conviction and denied the writs in an unpublished Disposition. People v. Wimbley, No. DOO8392 (March 15, 1990). The Supreme Court of California denied review. The California Supreme Court has also denied four original petitions for writ of habeas corpus and a petition for a writ of mandate.

On August 15, 1990, Wimbley filed a petition for writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2254. Wimbley based his writ on five grounds: (1) insufficient evidence to sustain a conviction as a matter of law; (2) conviction obtained by action of a grand or petit jury that was unconstitutionally impaneled; (3) conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence material to his case; (4) the prosecution's suppression of material evidence; and (5) ineffective assistance of counsel.

The district court denied the writ. In this appeal, Wimbley has abandoned all claims except denial of his due process right to a fair trial because of the trial court's failure to grant a continuance, and ineffective assistance of counsel.

II.

Wimbley argues that had the trial court granted him adequate time for investigation during business hours, as opposed to a weekend continuance, he could have shown that the ATM slips were inherently unreliable evidence. Wimbley now maintains that the ATM slips were time-stamped only one minute apart, but came from different bank branches, throwing their accuracy into question. Wimbley asserts he ...


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