Jones v. Hedgepeth

Filing 29

ORDER DIRECTING the Clerk to Substitute Warden Rick Hill as Respondent; FINDINGS and RECOMMENDATIONS to Deny Petitioner's Motions to Expand the Record and to Amend The Petition 22 ; FINDINGS and RECOMMENDAITONS to Deny the Petition for Writ of Habeas Corpus 1 , Enter Judgment for Respondent, and Decline to Issue a Certificate of Appealability, OBJECTIONS DEADLINE: THIRTY (30) DAYS, signed by Magistrate Judge Sheila K. Oberto on 9/12/12: Matter referred to Judge O'Neill. (Hellings, J)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DANIEL LAQUINN JONES,

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Petitioner,

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v.
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WARDEN RICK HILL,
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Respondent.
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1:10-cv—02398-LJO-SKO-HC
ORDER DIRECTING THE CLERK TO
SUBSTITUTE WARDEN RICK HILL AS
RESPONDENT
FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S MOTIONS TO
EXPAND THE RECORD AND TO AMEND
THE PETITION (DOC. 22)
FINDINGS AND RECOMMENDATIONS TO
DENY THE PETITION FOR WRIT OF
HABEAS CORPUS (DOC. 1), ENTER
JUDGMENT FOR RESPONDENT, AND
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a state prisoner proceeding pro se with a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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The matter has been referred to the Magistrate Judge pursuant to

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28 U.S.C.§ 636(b)(1) and Local Rules 302 through 304.

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before the Court is the petition, which was filed on November 9,

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2010, along with supporting exhibits.

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on March 15, 2011, with supporting documentation of the state

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court record.

Pending

Respondent filed an answer

Petitioner filed a traverse on April 11, 2011.
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I.

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Because the petition was filed after April 24, 1996, the

Jurisdiction

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effective date of the Antiterrorism and Effective Death Penalty

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Act of 1996 (AEDPA), the AEDPA applies in this proceeding.

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v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008

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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

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A district court may entertain a petition for a writ of

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habeas corpus by a person in custody pursuant to the judgment of

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a state court only on the ground that the custody is in violation

Lindh

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of the Constitution, laws, or treaties of the United States.

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U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,

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375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,

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16 (2010) (per curiam).

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the proceedings resulting in his conviction and sentence, he

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suffered violations of his Constitutional rights.

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judgment was rendered by the Fresno County Superior Court (FCSC),

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which is located within the territorial jurisdiction of this

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Court.

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Petitioner claims that in the course of

The challenged

28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).

Petitioner named, and Respondent filed an answer on behalf

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of, Respondent Anthony Hedgepeth, the warden of the Salinas

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Valley State Prison, where Petitioner was confined at the time

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the petition was filed.

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person who had custody of Petitioner.

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presently incarcerated at Folsom State Prison (FSP), the Court

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maintains its jurisdiction because “jurisdiction attaches on the

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initial filing for habeas corpus relief, and it is not destroyed

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by a transfer of the petitioner and the accompanying custodial

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change.”

Thus, Petitioner named as Respondent a
Although Petitioner is

Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990)
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(citing Smith v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971)).

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Accordingly, the Court concludes that it has jurisdiction

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over the subject matter of the action and the person of the

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Respondent.

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II.

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The official website of the California Department of

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Corrections and Rehabilitation (CDCR)1 indicates that Rick Hill

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is presently the warden of the FSP.

Order to the Clerk to Substitute the Respondent

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Fed. R. Civ. P. 25(d) provides that when a public officer

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who is a party to a civil action in an official capacity dies,

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resigns, or otherwise ceases to hold office while the action is

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pending, the officer’s successor is automatically substituted as

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a party.

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substitution at any time, but the absence of such an order does

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not affect the substitution.

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It further provides that the Court may order

The record reflects that Petitioner’s present custodian is

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Warden Rick Hill.

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to order a substitution of the proper Respondent.

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it is ORDERED that Warden Rick Hill be SUBSTITUTED as the

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Respondent.

It is, therefore, appropriate under rule 25(d)
Accordingly,

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III.

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Petitioner was convicted by a court trial in the FCSC of

Procedural Summary

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shooting at an inhabited dwelling in violation of Cal. Pen. Code

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§ 246 (count 3), unlawful possession of a firearm in violation of

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The Court may take judicial notice of facts that are capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned, including undisputed information posted on official
websites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331,
333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d
992, 999 (9th Cir. 2010). The address of the official website for the CDCR is
http://www.cdcr.ca.gov.

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Cal. Pen. Code § 12021(c)(1) (count 4), and being an active

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participant in a criminal street gang in violation of Cal. Pen.

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Code § 186.22(a) (count 5).

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that Petitioner had unlawfully discharged a firearm within the

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meaning of Cal. Pen. Code § 12022.53(c), personally used a

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firearm within the meaning of Cal. Pen. Code § 12022.5(a), and

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committed the unlawful shooting at the inhabited dwelling in

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association with, at the direction of, or for the benefit of a

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criminal street gang within the meaning of Cal. Pen. Code §

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186.22(b).

The court found true allegations

(LD 1, 1-2.)2

Petitioner was sentenced to a seven-year term for shooting

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at an inhabited dwelling, fifteen years to life for the street

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gang allegation, and twenty years for discharging a firearm; a

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ten-year term for personal use was stayed.

(Id. at 2.)

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On appeal, the California Court of Appeal for the Fifth

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Appellate District (CCA) affirmed the judgment of conviction but

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remanded the case for re-sentencing as follows:

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The seven-year sentence imposed on the section 246
conviction is ordered stricken. The 10-year section
12022.5, subdivision (a) enhancement is ordered
stricken. On remand, the court shall impose the 15
years to life called for by section 186.22, subdivision
(b)(4) as a penalty for the section 246 count 3
conviction itself. (See part II of this opinion, supra.)
The matter is remanded to the trial court for
resentencing in accordance with the views expressed
in this opinion.

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(LD 1, 21.)
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Petitioner sought review in the California Supreme Court
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(CSC).

The CSC denied review of his claim of ineffective

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“LD” refers to documents lodged by the Respondent in support of the

answer.

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assistance of counsel, but granted review of whether a violation

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of Cal. Pen. Code § 246 (shooting at an inhabited dwelling) that

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is committed to benefit a criminal street gang pursuant to Cal.

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Pen. Code § 186.22(b)(4)(B) is a felony punishable by

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imprisonment in the state prison for life within the meaning of

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Cal. Pen. Code § 12022.53(a)(17) such that the sentence may be

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enhanced under § 12022.53(c) for the defendant’s personal and

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intentional discharge of a firearm.

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decision rejecting Petitioner’s challenge to the sentence and

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affirming the CCA’s decision.

(LD 2-4.)

The CSC issued a

(LD 5.)

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While his petition for review was pending, Petitioner filed

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a petition for writ of habeas corpus in the FCSC alleging denial

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of his right to the effective assistance of counsel based on

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trial counsel’s failure or refusal to investigate and present

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witnesses Batten and Clay, whose declarations or witness

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statements, which Petitioner characterized as new evidence,

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contradicted the testimony of prosecution witness Demont Wilson.

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Petitioner also raised appellate counsel’s failure to raise an

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issue of instructional error on appeal.

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the petition.

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(LD 6.)

The FCSC denied

(LD 7.)

Petitioner filed a petition for writ of habeas corpus

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raising the same issues in the CCA.

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denied “without prejudice to petitioner refiling his petition in

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the superior court.”

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information that would indicate that Petitioner filed any

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additional petitions in the CSC.

(LD 9.)

(LD 8.)

The petition was

Neither party has submitted any

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IV.

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In a habeas proceeding brought by a person in custody

Facts

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pursuant to a judgment of a state court, a determination of a

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factual issue made by a state court shall be presumed to be

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correct; the petitioner has the burden of producing clear and

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convincing evidence to rebut the presumption of correctness.

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U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48

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(9th Cir. 2004).

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facts drawn from a state appellate court’s decision.

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Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009).

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This presumption applies to a statement of
Moses v.

Here, the CCA considered and decided Petitioner’s

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ineffective assistance of counsel claim; however, the CSC denied

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review of all but Petitioner’s sentencing claim, which presented

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an issue of law and did not involve different or disputed facts.

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Thus, to analyze Petitioner’s claim that his trial counsel was

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ineffective, the CCA’s version of the facts of Petitioner’s

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offense and trial proceedings will be set forth.

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summary is taken from the decision of the Court of Appeal of the

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State of California, Fifth Appellate District, in People v.

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Daniel Laquinn Jones, case number F047448, filed on October 25,

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2006 (LD 1):

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The following

FACTS
After members of one gang (the East Lane Six Deuce
Diamond Crips, or simply “East Lane”) exchanged words
with a member of another gang (the Hoover Crips)
outside of an apartment complex, one of the East Lane
gang members fired several shots. No one was struck by
any of the bullets, but one of the bullets passed
through the living room window and into the inner wall
of one of the apartments. Fragments of wall fell onto
the hair of a 14-year-old girl who was sitting on a
couch in the living room of that apartment. Appellant
Daniel Jones, whose gang moniker was “D-Loc,” was tried
without a jury and convicted of assault with a
semiautomatic firearm (§ 245, subd.(b)), discharging
a firearm at an inhabited dwelling house (§ 246) and
other crimes. Witnesses Demont Wilson and Elizabeth
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Brown both identified appellant as the shooter. Demont
Wilson testified that appellant had been only four
or five feet away from him just prior to the shooting.
Appellant moved for a new trial on the ground of newly
discovered evidence. The evidence was statements from
two witnesses: Samuel “Trigger” Miles, one of the East
Lane gang members who was present at the incident, and
Lamont Wilson, the Hoover Crip.FN3 Both men had refused
to cooperate with the police investigation prior to the
trial. Both men said appellant was not the shooter, but
would not say who the shooter was. Miles said he knew
who the shooter was. Lamont Wilson claimed he did not
know the shooter's name but had “seen him, uh, last
weekend as a matter of fact” and said that if he saw
the shooter again he could identify the shooter. Miles
was charged along with appellant. He entered a plea to
charges of assault with a firearm and street gang
terrorism, and received a two year sentence. Miles
denied that he was the shooter.

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FN3. Lamont Wilson was Demont Wilson's
younger brother.
The court granted appellant's motion for a new trial.
Appellant had a second nonjury trial before the same
judge who had presided at the first trial. At
appellant's second trail (sic) Demont Wilson again
identified appellant as the shooter. Elizabeth Brown
recanted her identification of appellant as the
shooter, but Officer Danny Kim testified that on the
night of the shooting Brown identified appellant as the
shooter. Appellant did not call Miles as a witness at
the second trial, apparently believing that Miles's
testimony would hurt more than it would help. The
prosecution was apparently of the same view and called
Miles as a prosecution witness at the second trial.
Miles testified that someone known as “Elijah” was with
him at the apartments and had a gun. Miles denied that
he saw Elijah fire the gun, but said that “[i]t could
have been” Elijah who fired the gun. The prosecution
presented evidence that prior to the second trial Miles
had identified Elijah Cruz as the shooter. The
prosecution also presented undisputed evidence that
Elijah Cruz had been in custody at the time of the
shooting, and that Cruz was now deceased. Lamont Wilson
did testify. He and a defense investigator were the
only defense witnesses called at the second trial.
Lamont Wilson denied that East Lane gang member “Baby
James” Batten had been present at the incident, even
though Batten (like Miles) had already been convicted
of assault with a firearm and street gang terrorism for
his role in the incident. Lamont Wilson said the
shooter was someone he knew as “MacDre” and that MacDre
looked nothing like appellant. Lamont Wilson testified
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that he had not cooperated at all with the police.

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The judge at appellant's second trial found appellant
guilty of shooting at an inhabited dwelling (§ 246;
count 3), unlawful possession of a firearm (§ 2021,
subd. (c)(1); count 4) and street terrorism (§ 186.22,
subd. (a); count 5.) On count 3, the court also found
true special allegations that appellant personally used
a firearm (§ 12022.5, subd. (a)(1)), that appellant
personally and intentionally discharged a firearm (§
12022.53, subd. (c)), and that appellant committed the
crime for the benefit of a criminal street gang (§
186.22, subd. (b)(4)(B)). The court also found true a
special allegation that the count 4 crime was committed
for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)). The court acquitted appellant of assault
with a semiautomatic firearm (§ 245, subd. (b); count
1) and of assault with a firearm (§ 245, subd. (a)(2));
count 2), apparently due to doubt about who or what
appellant was shooting at. (Counts 1 and 2 alleged
assaults upon Lamont Wilson's brother Demont Wilson,
who was also present.)

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Appellant then once again moved for a new trial on the
ground of newly discovered evidence. This time
appellant presented declarations of three persons (and
the transcript of a statement taken from one of them)
who stated that key prosecution witness Demont Wilson
had been inside one of the apartments at the time the
shooting had occurred outside. Notably absent from the
three declarations and the statement was any
information whatsoever as to why these three
individuals had not given this information to either
the prosecution or the defense at any earlier time. The
court denied this second motion for a new trial.

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(LD 1, 3-5.)

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V.

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Title 28 U.S.C. § 2254 provides in pertinent part:

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(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim–

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Standard of Decision and Scope of Review

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(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

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(2) resulted in a decision that was based on an

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unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

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Clearly established federal law refers to the holdings, as

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opposed to the dicta, of the decisions of the Supreme Court as of

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the time of the relevant state court decision.

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Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.

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Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S.

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362, 412 (2000).

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principles set forth by the Supreme Court at the pertinent time.

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Cullen v.

It is thus the governing legal principle or

Lockyer v. Andrade, 538 U.S. 71-72.

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A state court’s decision contravenes clearly established

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Supreme Court precedent if it reaches a legal conclusion opposite

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to, or substantially different from, the Supreme Court's or

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concludes differently on a materially indistinguishable set of

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facts.

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need not have cited Supreme Court precedent or have been aware of

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it, "so long as neither the reasoning nor the result of the

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state-court decision contradicts [it]."

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U.S. 3, 8 (2002).

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established federal law if it either 1) correctly identifies the

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governing rule but then applies it to a new set of facts in an

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objectively unreasonable manner, or 2) extends or fails to extend

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a clearly established legal principle to a new context in an

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objectively unreasonable manner.

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1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407.

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application of clearly established federal law is unreasonable

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only if it is objectively unreasonable; an incorrect or

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inaccurate application is not necessarily unreasonable.

Williams v. Taylor, 529 U.S. at 405-06.

The state court

Early v. Packer, 537

A state court unreasonably applies clearly

Hernandez v. Small, 282 F.3d

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An

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Williams, 529 U.S. at 410.
A state court’s determination that a claim lacks merit

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precludes federal habeas relief as long as it is possible that

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fairminded jurists could disagree on the correctness of the state

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court’s decision.

Harrington v. Richter, 562 U.S. -, 131 S.Ct.

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770, 786 (2011).

Even a strong case for relief does not render

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the state court’s conclusions unreasonable.

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federal habeas relief, a state prisoner must show that the state

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court’s ruling on a claim was “so lacking in justification that

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there was an error well understood and comprehended in existing

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law beyond any possibility for fairminded disagreement.”

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786-87.

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standard[s] for evaluating state-court rulings” which require

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that state court decisions be given the benefit of the doubt, and

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the Petitioner bear the burden of proof.

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131 S. Ct. at 1398.

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unless each ground supporting the state court decision is

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examined and found to be unreasonable under the AEDPA.

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Lambert, -–U.S.--, 132 S.Ct. 1195, 1199 (2012).

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Id.

To obtain

Id. at

The standards set by § 2254(d) are “highly deferential

Cullen v. Pinholster,

Further, habeas relief is not appropriate

Wetzel v.

In assessing under section 2254(d)(1) whether the state

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court’s legal conclusion was contrary to or an unreasonable

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application of federal law, “review... is limited to the record

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that was before the state court that adjudicated the

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claim on the merits.”

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Evidence introduced in federal court has no bearing on review

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pursuant to § 2254(d)(1).

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brought by a person in custody pursuant to a judgment of a state

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court, a determination of a factual issue made by a state court

Cullen v. Pinholster, 131 S. Ct. at 1398.

Id. at 1400.

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In a habeas proceeding

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shall be presumed to be correct; the petitioner has the burden of

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producing clear and convincing evidence to rebut the presumption

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of correctness.

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that was on the merits and was based on a factual determination

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will not be overturned on factual grounds unless it was

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objectively unreasonable in light of the evidence presented in

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the state proceedings.

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(2003).

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VI.

28 U.S.C. § 2254(e)(1).

A state court decision

Miller-El v. Cockrell, 537 U.S. 322, 340

Ineffective Assistance of Counsel

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Petitioner contends that his right to the effective

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assistance of counsel guaranteed by the Sixth and Fourteenth

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Amendments was violated by trial counsel’s failure to investigate

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and present in a timely manner crucial, exculpatory evidence

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consisting of testimony by Charles Clay, James Batten, and Lynn

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Chapman, who declared under penalty of perjury that at the time

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of the shooting, chief prosecution witness Demont Wilson was

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actually inside the apartment.

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A.

The State Court Decision

This Court will review the last reasoned decision of a state

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court on the ineffective assistance of counsel claim.

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reasoned decision must be identified in order to analyze the

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state court decision pursuant to 28 U.S.C. § 2254(d)(1).

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v. Fleming, 423 F.3d 1085, 1092 n.3 (9th Cir. 2005); Bailey v.

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Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003).

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The last

Barker

Here, the CCA issued a reasoned decision on the ineffective

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assistance claim, but the CSC denied review.

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decision was the last reasoned decision in which the state court

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adjudicated on the merits claims that were presented to the
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Thus, the CCA’s

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state’s highest court.

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judgment rejecting a federal claim, later unexplained orders

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upholding that judgment or rejecting the same claim are presumed

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to rest upon the same ground.

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803 (1991).

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decision of the CSC to the CCA’s last reasoned decision as the

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relevant state-court determination.

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Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004).

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Where there has been one reasoned state

Ylst v. Nunnemaker, 501 U.S. 797,

This Court will thus “look through” the unexplained

Id. at 803-04; Taylor v.

The pertinent portion of the CCA’s decision is as follows:

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A. The Right to Effective Assistance of Counsel

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The Sixth Amendment to the U.S. Constitution states in
pertinent part that “[i]n all criminal prosecutions,
the accused shall enjoy the right ... to have the
assistance of counsel for his defense.” The Fourteenth
Amendment states in pertinent part that “[n]o State
shall ... deprive any person of life, liberty, or
property, without due process of law....” The court in
Gideon v. Wainwright (1963) 372 U.S. 335 held that the
Sixth Amendment's right to counsel is one of the
“fundamental rights” made obligatory upon the states by
the Fourteenth Amendment's guarantee of due process.
(Gideon v. Wainwright, supra, 372 U.S. at p. 342.) The
law pertaining to a defendant's claim of a denial of
effective assistance of counsel is well established:

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“ ‘Every person accused of a criminal offense
is entitled to constitutionally adequate
legal assistance.’ (People v. Pope (1979) 23
Cal.3d 412, 424 [152 Cal.Rptr.732, 590 P.2d
859, 2 A.L.R.4th 1] (Pope); see also People
v. Ledesma (1987) 43 Cal.3d 171, 215 [233
Cal.Rptr. 404, 729 P.2d 839] (Ledesma).) To
establish a claim of inadequate assistance, a
defendant must show counsel's representation
was ‘deficient’ in that it ‘fell below an
objective standard of reasonableness .... [¶]
... under prevailing professional norms.’
([Strickland v. Washington (1984) 466 U.S.
668], 688 [104 S.Ct. at pp.2063-2065]; In re
Jones (1996) 13 Cal.4th 552, 561 [54
Cal.Rptr.2d 52, 917 P.2d 1175].) In addition,
a defendant is required to show he or she was
prejudiced by counsel's deficient
representation. (Strickland, supra, 466 U.S.
at p. 688 [104 S.Ct. at pp.2064-2065];
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Ledesma, supra, 43 Cal.3d at p. 217.) In
determining prejudice, we inquire whether
there is a reasonable probability that, but
for counsel's deficiencies, the result would
have been more favorable to the defendant.
(Strickland, supra, 466 U.S. at p. 687 [104
S.Ct. at p.2064]; In re Sixto (1989) 48
Cal.3d 1247, 1257 [259 Cal.Rptr. 491, 774
P.2d 164].)

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“In evaluating a defendant's claim of
deficient performance by counsel, there is a
‘strong presumption that counsel's conduct
falls within the wide range of reasonable
professional assistance’ (Strickland, supra,
466 U.S. at p. 689 [104 S.Ct. at p.2065]; In
re Jones, supra, 13 Cal.4th at p. 561), and
we accord great deference to counsel's
tactical decisions. (In re Fields (1990) 51
Cal.3d 1063, 1069-1070 [275 Cal.Rptr. 384,
800 P.2d 862] (Fields).) Were it otherwise,
appellate courts would be required to engage
in the ‘ “perilous process” ’ of
second-guessing counsel's trial strategy.
(Pope, supra, 23 Cal.3d at p. 426.)
Accordingly, a reviewing court will reverse a
conviction on the ground of inadequate
counsel ‘only if the record on appeal
affirmatively discloses that counsel had no
rational tactical purpose for his act or
omission.’ (People v. Fosselman (1983) 33
Cal.3d 572, 581 [189 Cal.Rptr. 855, 659 P.2d
1144] (Fosselman); see also People v. Mendoza
Tello (1997) 15 Cal.4th 264 [62 Cal.Rptr.2d
437, 933 P.2d 1134]; People v. Avena (1966)
13 Cal.4th 394, 418 [53 Cal.Rptr.2d 301, 916
P.2d 1000] (Avena).)” (People v. Frye (1998)
18 Cal.4th 894, 979-980; in accord, see also
People v. Anderson (2001) 25 Cal.4th 543,
569.)

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B.

No Denial of The Right Appears in The Record on Appeal

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Appellant argues that the record on appeal
affirmatively discloses that counsel had no rational
tactical purpose for not presenting testimony from
these witnesses. (People v. Fosselman, supra, 33 Cal.3d
at p. 581; People v. Frye, supra, 18 Cal.4th at pp.
979-980.) We disagree. The record on appeal does not
affirmatively disclose that this “exculpatory evidence”
ever existed prior to trial-i.e., that any of these
witnesses were willing to testify at trial to the
things they have now said in their post-trial
declarations. None of the three declarants even
attempts to explain why he or she did not come forward
13

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

and offer the information to either the prosecution or
the defense at some point prior to appellant's second
trial (or prior to the first trial, for that matter).
None denies knowing, prior to trial, that appellant was
criminally charged. None denies knowing that appellant
was tried twice. None attempts to explain how the
defense suddenly obtained their statements after
appellant was found guilty at his second trial. None
denies having been asked by police or by investigators,
prior to trial, if they knew anything about the
shooting. The record on appeal is equally as consistent
with one view-that the three declarants made up their
post-trial statements after appellant was convicted in
order to help him obtain yet another new trial-as it is
with the explanation that appellant asks us to glean
from the appellate record-i.e., that appellant's trial
counsel failed to investigate and failed to discover
exculpatory information that was available for the
asking.
Appellant seizes upon a written statement made by
appellant's trial counsel in which he told the court
that “[t]he three witness ... were unknown to me at the
time of either the first trial or the second trial of
this matter.” Appellant contends that Gray (sic) and
Batten were expressly mentioned in a police report
provided to the defense, and that Gray (sic) and
Batten's post-trial declarations thus affirmatively
show a failure of trial counsel to properly investigate
prior to trial. But after the district attorney's
opposition to the motion pointed out that Gray (sic)
and Batten were mentioned in the original police
“incident report” provided to the defense in discovery,
and that Batten was one of three defendants charged as
a result of the shooting (along with appellant and
Samuel “Trigger” Miles) and had pleaded guilty to
charges stemming from the incident, trial counsel
explained his statement at the hearing on appellant's
motion for a new trial. Appellant's trial counsel told
the court “the information that we are getting is
somewhat different as far as information that we
previously had from the witnesses” and “I did not
quarrel with the fact that the witnesses were in the
reports and known, but the statements that we got from
these witnesses are different from the statements that
have been made previously.” Trial counsel also told the
court “[k]nowing who the witnesses are and knowing what
they're going to say are two different subjects as far
as I am concerned.”
No one appears to contend that Chapman was mentioned in
any police reports. Appellant does not explain how the
record on appeal demonstrates that trial counsel should
have been aware of Chapman's existence, or of her
supposed willingness to testify that she was in the
14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

apartment with Demont Wilson when the shot or shots
were fired. Certainly her own declaration provides no
such explanation. Possibly this is one reason why
appellant raises no contention on this appeal that the
court erred in denying his motion for a new trial. (See
People v. Delgado (1993) 5 Cal.4th 312, 328.) A witness
at appellant's second trial, DeOcean Williams, was
asked who was in her apartment (# 102) at the time of
or shortly after the shooting. She mentioned nine
persons. These were herself, her sisters Jamie and
Lakesha, her two small children, Jessica Flores,
Demetria Wilson, Lamont Wilson and (after shots were
fired) Demont Wilson. When Demont Wilson testified
about who was there he mentioned seven of these nine
persons (all but the sisters Jamie and Lakesha). No
witness at trial mentioned the name Lynn Chapman.
Nothing in the record on this appeal demonstrates that
appellant's trial counsel fell below an objective
standard of reasonableness in not presenting her as a
witness. Nor is it even clear, from this record, that
trial counsel would have called Chapman as a witness at
trial even if he had known prior to trial of the
assertions she now makes in her declaration. She would
have had to undergo cross-examination, and would have
had to convince the trier of fact that she was really
at the scene even though other witnesses, who the court
found credible, did not place her at the scene. “[I]n
the absence of an explanation in the record, appellate
courts should not speculate that trial counsel's
failure to present a particular defense resulted from
incompetence. To justify relief, appellant must be able
to point to something in the record showing that
counsel had no satisfactory rationale for what was done
or not done.” (People v. Pope, supra, 23 Cal.3d at p.
426, fn. 16.) Appellant has made no such showing on
this appeal.

19
(LD 1, 6-9.)
20
B.

Analysis

21
The law governing ineffective assistance of counsel claims
22
is clearly established for the purposes of the AEDPA deference
23
standard set forth in 28 U.S.C. § 2254(d).

Premo v. Moore, –U.S.

24
–, 131 S.Ct. 733, 737-38 (2011); Canales v. Roe, 151 F.3d 1226,
25
1229 n.2 (9th Cir. 1998).
26
The Supreme Court has described the high bar presented by
27
§ 2254(d)(1) for prevailing on a claim of ineffective assistance
28
15

1
2
3
4
5
6
7

of counsel:
“To establish deficient performance, a person
challenging a conviction must show that ‘counsel's
representation fell below an objective standard of
reasonableness.’ [Strickland,] 466 U.S., at 688 [104
S.Ct. 2052]. A court considering a claim of ineffective
assistance must apply a ‘strong presumption’ that
counsel's representation was within the ‘wide range’ of
reasonable professional assistance. Id., at 689 [104
S.Ct. 2052]. The challenger's burden is to show ‘that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment.’ Id., at 687 [104 S.Ct. 2052].

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

“With respect to prejudice, a challenger must
demonstrate ‘a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.’ ...
“ ‘Surmounting Strickland's high bar is never an easy
task.’ Padilla v. Kentucky, 559 U.S. ----, ---- [130
S.Ct. 1473, 1485, 176 L.Ed.2d 284] (2010). An
ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues
not presented at trial [or in pretrial proceedings],
and so the Strickland standard must be applied with
scrupulous care, lest ‘intrusive post-trial inquiry’
threaten the integrity of the very adversary process
the right to counsel is meant to serve. Strickland, 466
U.S., at 689-690 [104 S.Ct. 2052]. Even under de novo
review, the standard for judging counsel's
representation is a most deferential one. Unlike a
later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing
counsel, and with the judge. It is ‘all too tempting’
to ‘second-guess counsel's assistance after conviction
or adverse sentence.’ Id., at 689 [104 S.Ct. 2052]; see
also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843,
152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S.
364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The
question is whether an attorney's representation
amounted to incompetence under ‘prevailing professional
norms,’ not whether it deviated from best practices or
most common custom. Strickland, 466 U.S., at 690, 104
S.Ct. 2052.
“Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is all the
more difficult. The standards created by Strickland and
§ 2254(d) are both ‘highly deferential,’ id., at 689
[104 S.Ct. 2052]; Lindh v. Murphy, 521 U.S. 320, 333,
n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when
the two apply in tandem, review is ‘doubly’ so,
16

1
2
3
4
5

Knowles, 556 U.S., at ----, 129 S.Ct., at 1420. The
Strickland standard is a general one, so the range of
reasonable applications is substantial. 556 U.S., at
---- [129 S.Ct., at 1420]. Federal habeas courts must
guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d).
When § 2254(d) applies, the question is not whether
counsel's actions were reasonable. The question is
whether there is any reasonable argument that counsel
satisfied Strickland's deferential standard.”

6
Premo v. Moore, -U.S. -, 131 S.Ct. 733, 739-40 (2011) (quoting
7
Harrington v. Richter, –U.S.-, 131 S.Ct. 770 (2011)).
8
Here, the state court cited Strickland and articulated the
9
correct legal standards for evaluating claims of ineffective
10
assistance of counsel.

Further, the state court reasonably

11
concluded that the record failed to demonstrate that the
12
allegedly new evidence from the three witnesses was available
13
before the trial.
14
All three witnesses declared under penalty of perjury that
15
they were present at the shooting, and Demont Wilson was inside
16
his apartment at the time of the shooting.3

Batten stated that

17
Petitioner was not present, while the other two witnesses stated
18
they did not know Petitioner.

Clay’s statement that he was

19
informed that someone would call him was the only explanation
20
offered for the witnesses’ individual or collective failure to
21
22
23
24
25
26
27
28

3
Charles Clay’s statement to a defense investigator and his declaration
reflected that on June 29, 2004, Clay stated that he did not know Daniel Jones
but did know Demont Wilson, who was inside a downstairs apartment with his
girlfriend at the time Clay observed the shot being fired from outside the
gate. Clay was not questioned by police, who took his information and
informed him that someone would call him. (2 CT 392-96.) Clay’s declaration
dated August 26, 2004, was consistent with his statement. (Id. at 398.)
Lynn Chapman declared that she did not know Daniel Jones, but she was
with Demont Wilson at the time of the shooting inside Wilson’s apartment on
the couch and then in the back bedroom of the apartment. (Id. at 399.)
James Batten declared that he was present and witnessed the shooting,
during which shots were fired from outside the gate; Daniel Jones was not
present and was innocent. (Id. at 400.)

17

1

inform the police or the defense of their information.

2

explanation extends only to Clay’s initial contact with police.

3

There is no evidence that any or all of the three witnesses were

4

ignorant of the charges against Petitioner, Petitioner’s two

5

trials, or the guilt findings; there is no explanation for their

6

delay in communicating their information to either the

7

prosecution or the defense.

8

there is no background or explanation concerning the timing of

9

his making a new statement in relation to his having entered a

Clay’s

Although Batten was a co-defendant,

10

plea to any charges.

11

support Lynn Chapman’s presence at the scene.

12

There is no independent, record basis to

Review of the new trial motion filed by the defense reflects

13

that defense counsel represented that the three witnesses were

14

unknown to him at the time of the first two trials, and he did

15

not recall seeing their names on a list of potential witnesses

16

for the prosecutor or any report from the police department,

17

prosecutorial investigative staff, or a special gang unit

18

regarding an interview with any of the witnesses.

19

91.)

20

17, 2005, the prosecutor represented, without contradiction, that

21

by the time of the second trial, Batten, who was a co-defendant,

22

was available and was known to the defense.

23

known to the defense because he was named in the original report

24

of the matter several years before the motion hearing.

25

3306.)

26

the availability of the evidence:

27
28

(II CT 390-

However, at the hearing on the new trial motion on February

Further, Clay was

(XII RT

Petitioner’s counsel qualified his characterization of

[DEFENSE COUNSEL]: Well, basically, as I indicated
in my end of this motion, and I did not indicate that
the name Chapman and Clay were probably known to us
18

1
2

before, but the information that we are getting is
somewhat different as far as information that we had
previously from the witnesses....

3

(XII RT 3304-05.)

4

further stated the following:

5
6
7
8
9
10
11
12
13

In submitting the motion, Petitioner’s counsel

[DEFENSE COUNSEL]: Of course, I just said a moment
ago to the Court that I did not quarrel with the fact that
the witnesses were in the reports and known, but
the statements that we got from these witnesses are
different from the statements that have been made
previously. Some we did not know, and it coincides.
I mean you can’t ignore the evidence at trial. You just
can’t blindly ignore the fact that there is a motive for
Damon (sic) Wilson to fabricate. The witnesses have
stated that Damon (sic) Wilson was lying because he was
inside the apartment when the shots were fired. Knowing
who the witnesses are and knowing what they’re going to
say are two different subjects as far as I am concerned.
And I do not think the cases that are cited in the
Points and Authorities made that, because we have
known about the witnesses but we have got these new
statements from them....

14

(Id. at 3306-07.)

15

issue was the subject matter of the witnesses' testimony.

16

on the evidence that the court had heard while presiding over

17

both trials, the court concluded, “I really am convinced that

18

there is no reasonable probability that a different result would

19

come about in a third trial even if Ms. Chapman were to testify

20

and she truly is a witness.”

21

The trial court expressly stated that the
Based

(Id. at 3308.)

On the appellate record, the state court reasonably

22

concluded that the credibility of the three witnesses was

23

doubtful.

24

had not shown that the evidence had been available earlier, or

25

that counsel had engaged in objectively unreasonable omissions by

26

failing to undertake a reasonable investigation of the witnesses

27

or to present the three witnesses at the second trial.

28

the record did not foreclose a conclusion that counsel had

The record thus supported a conclusion that Petitioner

19

Further,

1

decided that given the circumstances surrounding the witnesses’

2

revelations, he would not present the witnesses at trial, where

3

they would have been subject to cross-examination.

4

court reasonably decided that the record did not foreclose a

5

tactical decision on the part of counsel.

6

The state

In sum, the state court applied the correct, applicable,

7

clearly established federal law concerning the ineffective

8

assistance of counsel.

9

had not shown that trial counsel’s performance fell below an

10

objective standard of reasonableness was not “so lacking in

11

justification that there was an error well understood and

12

comprehended in existing law beyond any possibility for

13

fairminded disagreement.”

14

786–87.

15

The court's conclusion that Petitioner

Harrington v. Richter, 131 S.Ct. at

Accordingly, the state court decision was not contrary to,

16

or an unreasonable application of, clearly established federal

17

law within the meaning of 28 U.S.C. § 2254(d)(1).

18

Petitioner’s claim concerning the allegedly ineffective

19

assistance of counsel should be denied.

20

VII.

Thus,

Petitioner’s Sentence as a Violation of
Due Process of Law

21
Petitioner argues that the trial court erred by treating
22
§ 246, which proscribes shooting into an inhabited dwelling and
23
normally carries a maximum punishment of seven years, as a felony
24
punishable by life imprisonment by improperly incorporating the
25
provisions of Cal. Pen. Code § 186.22, and then adding a twenty26
year term pursuant to § 12022.53(c).

Petitioner argues that the

27
CSC misunderstood the scope of its discretion to impose
28
20

1

enhancements.

2

he would not have faced a sentence of fifteen years to life plus

3

twenty years, but rather a determinate term of no more than seven

4

years for violating § 246.

He contends that but for the state court’s errors,

5

Petitioner argues that his right to due process of law

6

guaranteed by the Fourteenth Amendment was violated by the state

7

court’s imposition of a sentence of fifteen years to life on the

8

violation of Cal. Pen. Code § 246 (shooting at an inhabited

9

dwelling) as well as a twenty-year term pursuant to Cal. Pen.

10

Code § 12022.53(c) because it constituted “bootstrapping

11

punishment” after Petitioner’s conduct had already been

12

“aggravated under a separate statute, thus constituting dual use

13

of facts to enhance punishment.”

14

state law for the proposition that dual use of facts is

15

proscribed.

16

impermissible under federal law, citing Brecht v. Abrahamson, 507

17

U.S. 619, 623 (1993) for the proposition that a court must

18

determine whether the error of the trial court had a substantial

19

and injurious effect on the Petitioner’s sentence.

(Id. at 46.)

(Pet. 9.)

Petitioner cites

Petitioner also contends that this is

20

Citing Hicks v. Oklahoma, 447 U.S. 343, 346 (1980),

21

Petitioner further contends that the sentence was unauthorized,

22

harsh, and excessive, and a violation of due process of law

23

because the state court failed to honor unspecified procedures

24

attendant to a state-created liberty interest.

25

A.

The State Court Decision

26

The CSC issued a reasoned decision in People v. Daniel

27

Laquinn Jones, case number S148463, which was filed on August 31,

28

2009, and published at People v. Jones, 47 Cal.4th 566 (2009).
21

1
2

(LD 5.)
The CSC’s decision did not advert to the Due Process Clause

3

or to Petitioner’s due process claim that was set forth in his

4

petition for review.4

5

specified felony to benefit a criminal street gang within the

6

meaning of Cal. Pen. Code § 186.22(b)(4), the felony is

7

punishable by imprisonment for life within the meaning of Cal.

8

Pen. Code § 12022.53(a)(17).

9

a twenty-year sentence enhancement is imposed on a defendant who

The CSC held that where one commits a

Under Cal. Pen. Code § 12022.53(c),

10

personally and intentionally discharges a firearm in the

11

commission of a felony that is in turn punishable by death or

12

imprisonment in the state prison for life pursuant to

13

§ 12022.53(a)(17).

14

Petitioner to be sentenced to the twenty-year sentence

15

enhancement pursuant to § 12022.53(c) because his offense of

16

shooting into an inhabited dwelling qualified under

17

§ 12022.53(a)(17) based on the gang finding; the term imposed

18

pursuant to § 186.22(b)(4) was an alternate penalty for the

19

underlying felony itself, and not a mere enhancement.

20

imposition of the enhancement pursuant to § 12022.53(c) was

21

proper.

22

The CSC held that it was thus appropriate for

Thus,

People v. Jones, 47 Cal.4th at 568-78.

The CSC thus affirmed the CCA’s position.

The CSC decided

23
24
25
26
27
28

4
The petition for review contained two paragraphs in which it was argued
that the imposition of the allegedly unauthorized term violated Petitioner’s
right to due process of law under the Fourteenth Amendment because it was
unauthorized by state law and because the state court failed to honor
unspecified procedures attendant to an unspecified state-created liberty
interest. (LD 2, 31-32.) Petitioner cited Hicks v. Oklahoma, 447 U.S. 343,
346 (1980). (Id. at 31.)
In a petition for rehearing, Petitioner argued that the CSC had
arbitrarily and inconsistently interpreted the same statutes in violation of
Petitioner’s rights to equal protection and due process of law. (Doc. 2-1,
69-80 [portion of petition for rehearing].)

22

1

the case based on state law principles of statutory construction

2

and interpretation of legislative intent.5

3

rejected the argument that such a sentence was the product of

4

impermissible “bootstrapping,” distinguishing People v. Briceno,

5

34 Cal.4th 451 (2004) and People v. Arroyas, 96 Cal.App.4th 1439

6

(2002), upon which Petitioner relies.

7

75.

8

California’s legislature did not intend to apply the enhancement

9

of § 12022.53 to the offense of shooting at an inhabited

10

Jones, 47 Cal.4th at 572-

The CSC expressly rejected Petitioner’s contention that

dwelling.

11
12

The CSC expressly

Id. at 578-79.
B.

Adjudication on the Merits

The Court will consider whether the state courts adjudicated

13

Petitioner’s due process claim on the merits within the meaning

14

of 28 U.S.C. § 2254(d), which limits the availability of habeas

15

corpus relief for claims that have previously been adjudicated on

16

the merits in state court proceedings.

17

If the claim was adjudicated on the merits, pursuant to

18

§ 2254(d)(1), this Court will grant relief only if the Petitioner

19

shows that the state court decision was contrary to, or an

20

unreasonable application of, clearly established federal law.

21

Where the state court decides an issue on the merits, but its

22

decision is unaccompanied by an explanation, a habeas

23

petitioner’s burden must be met by showing that here was no

24

reasonable basis for the state court to deny relief.

25

v. Richter, 131 S.Ct. 770, 784.

Harrington

In such circumstances, this

26
27
28

5

Because the CSC decided the issues of statutory construction and application solely on the basis of state
law and did not expressly address Petitioner’s constitutional claims, the published decision is not set forth at length.
The pertinent portions of the decision will be summarized in the course of this Court’s analysis of the issues.

23

1

Court should perform an independent review of the record to

2

ascertain whether the state court decision was objectively

3

unreasonable.

4

2007), cert. denied, 552 U.S. 1316 (2008); Himes v. Thompson, 336

5

F.3d 848, 853 (9th Cir. 2003).

6

equivalent of de novo review; rather, the Court must still defer

7

to the state court’s ultimate decision.

8

F.3d 1160, 1167 (9th Cir. 2002).

9

decided on the merits, this Court must review it de novo.

10

Medley v. Runnels, 506 F.3d 857, 863 n.3 (9th Cir.

Independent review is not the

Pirtle v. Morgan, 313

However, if the claim was not
Pirtle

v. Morgan, 313 F.3d at 1167.

11

A state court has adjudicated a claim on the merits within

12

the meaning of § 2254(d) when it decides the petitioner’s right

13

to relief based on the substance of the constitutional claim

14

raised, rather than denying the claim because of a procedural or

15

other rule precluding state court review of the merits.

16

v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).

17

Lambert

When a federal claim has been presented to a state court and

18

the state court has denied relief, it may be presumed that the

19

state court adjudicated the claim on the merits in the absence of

20

any indication or state-law procedural principles to the

21

contrary.

22

the CSC did not grant review of Petitioner’s due process claim.

23

It instead limited the issues to the question whether

24

Petitioner’s crime was a felony punishable by imprisonment in the

25

state prison for life pursuant to Cal. Pen. Code §

26

12022.53(a)(17) such that the sentence could be enhanced under §

27

12022.53(c) for the Petitioner’s personal and intentional

28

discharge of a firearm.

Harrington v. Richter, 131 S.Ct. 770, 784-85.

(LD 4.)
24

Here,

A state court’s decision to

1

deny discretionary review, such as a decision of the California

2

Supreme Court to deny a petition for discretionary review of a

3

state court of appeal’s decision on direct appeal in a non-

4

capital case, is not a decision on the merits, but rather is only

5

a determination that the California Supreme Court will not

6

consider the case on the merits.

7

626, 636 (9th Cir. 2011), cert. grtd. in part,6 Cavazos v.

8

Williams, --- S.Ct. ----, 2012 WL 104740

9

13, 2012) (citing Harrington v. Richter, – U.S. -, 131 S.Ct. 770,

Williams v. Cavazos, 646 F.3d

(No. 11-465, U.S. Jan

10

784-85 (2011); Cal. R. Ct. 8.500; and Campter v. Workers’ Comp.

11

Appeals Bd., 3 Cal.4th 679 (1992)).

12

review of Petitioner’s due process claim, it appears that the CSC

13

did not decide the due process claim on the merits.

14

Because the CSC denied

Here, after the CSC issued its decision on Petitioner’s

15

state law sentencing issue, Petitioner filed a petition for

16

rehearing.

17

record before the Court.

18

that the holding of the CSC in his case could not be reconciled

19

with the holdings of a companion case to Petitioner’s case,

20

People v. Brookfield, or People v. Montes, 31 Cal.4th 350 (2003).

21

He claimed that the arbitrary and inconsistent interpretations of

22

state law violated his rights to due process and equal

23

protection.

24

Courts reflects that the petition for rehearing was denied on

Only a portion of the petition is included in the
(Doc. 2-1, 69-80.)7

Petitioner argued

Reference to the official website of the California

25
26
27
28

6

Certiorari was granted as to the limited issue of whether a habeas petitioner's claim has been “adjudicated
on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but
did not expressly acknowledge a federal-law basis for the claim. Id.
7

Respondent did not provide this portion of the record of the state court proceedings, and Petitioner has
provided only a portion of it.

25

1
2

October 28, 2009, without a statement of reasoning or authority.8
The denial of a petition for rehearing is analogous to the

3

denial of a petition for discretionary review because it

4

effectively signals the reviewing court’s refusal to grant

5

review.

6

merits determination, and it does not alter this Court’s

7

determination concerning whether the claim was decided on the

8

merits in state court.

9

Thus, the denial of a rehearing does not constitute a

The Respondent has not provided this Court with Petitioner’s

10

briefing in the direct appeal to the CCA; thus, it cannot be

11

determined with certainty whether or not Petitioner raised his

12

due process claim on appeal before the CCA.

13

Petitioner raised his due process claim on direct appeal, review

14

of the CCA’s opinion shows that the CCA did not address such a

15

claim or indicate that it was among Petitioner’s contentions.

16

Moreover, even if the due process claim had been raised before

17

the CCA, the CCA’s opinion expressly decided only Petitioner’s

18

state law claims.

19

court, but the state court simply fails to decide the claim

20

without explanation, the state court’s process may be

21

characterized as not reaching the merits of the claim.

22

Williams v. Cavazos, 646 F.3d at 636-37 (9th Cir. 2011), cert.

23

grtd. in part, Cavazos v. Williams, --- S.Ct. ----, 2012 WL

Even assuming that

Where a petitioner raises a claim in state

See,

24
8

25
26
27
28

The Court may take judicial notice of facts that are capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned, including undisputed information posted on official
websites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331,
333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d
992, 999 (9th Cir. 2010). It is appropriate to take judicial notice of the
docket sheet of a California court. White v Martel, 601 F.3d 882, 885 (9th
Cir. 2010), cert. denied, 131 S.Ct. 332 (2010). The address of the official
website of the California state courts is www.courts.ca.gov.

26

1

104740

(No. 11-465, U.S. Jan 13, 2012).

2

In any event, it is unnecessary to obtain Petitioner’s

3

briefing in the CCA or to decide whether the state courts decided

4

Petitioner’s due process claim on the merits.

5

under either standard of review, this Court’s conclusion would be

6

the same.

7

review, then it was necessarily reasonable under the more

8

deferential AEDPA standard of review pursuant to 28 U.S.C.

9

§ 2254(d).

10

(2010).

If a state court decision is correct under de novo

Berghuis v. Thompkins, –U.S.–, 130 S.Ct. 2250, 2264

This Court will thus undertake a de novo review.

11

C.

12
13

This is because

Analysis
1.

State Law Claims

To the extent that Petitioner argues that the state court

14

erred in its interpretation or application of state law, or

15

misunderstood the extent of its discretion under the state

16

statutes, Petitioner’s allegations do not merit relief in this

17

proceeding.

18

Federal habeas relief is not available to retry a state

19

issue that does not rise to the level of a federal constitutional

20

violation.

21

McGuire, 502 U.S. 62, 67-68 (1991).

22

application of state law are not cognizable in federal habeas

23

corpus.

24

a habeas proceeding, this Court is bound by the California

25

Supreme Court’s interpretation of California law unless the

26

interpretation is deemed untenable or a veiled attempt to avoid

27

review of federal questions.

28

926, 964 (9th Cir. 2001).

Wilson v. Corcoran, 562 U.S. at 16; Estelle v.
Thus, alleged errors in the

Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002).

In

Murtishaw v. Woodford, 255 F.3d

Here, there is no basis for departing
27

1

from the rule that requires this Court to respect state law

2

decisions on state law matters.

3

With respect to state court decisions concerning the

4

application of state sentencing laws, it is established that a

5

claim alleging misapplication of state sentencing law involves a

6

question of state law which is not cognizable in a proceeding

7

pursuant to 28 U.S.C. § 2254.

8

764, 780 (1990) (rejecting a claim that a state court misapplied

9

state statutes concerning aggravating circumstances on the ground

See, Lewis v. Jeffers, 497 U.S.

10

that federal habeas corpus relief does not lie for errors of

11

state law); Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002)

12

(dismissing as not cognizable claims alleging only that the trial

13

court abused its discretion in selecting consecutive sentences

14

and erred in failing to state reasons for choosing consecutive

15

terms); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989)

16

(dismissing as not cognizable a claim concerning whether a prior

17

conviction qualified as a sentence enhancement under state law).

18

Absent a showing of fundamental unfairness, a state court’s

19

misapplication of its own sentencing laws does not justify

20

federal habeas relief.

21

Cir. 1994) (determining that a defendant was not entitled to

22

habeas relief where he argued that his prior conviction of a

23

federal offense could be used to enhance his state punishment

24

because there was no unfairness found in the state’s

25

interpretation of federal law to enhance a state sentence).

26

Christian v. Rhode, 41 F.3d 461, 469 (9th

Here, no fundamental unfairness appears.

Petitioner was

27

sentenced based on the trial court’s specific findings concerning

28

Petitioner’s conduct in relation to specified sentencing
28

1

statutes.

2

2.

3

Arbitrary Deprivation of Liberty

Petitioner relies on Hicks v. Oklahoma, 447 U.S. 343 (1980),

4

in which the Court found that a defendant’s sentence was imposed

5

in violation of the Due Process Clause of the Fourteenth

6

Amendment, which protects against arbitrary deprivation of

7

liberty by the state.

8

discretion under state law to impose punishment, was instructed

9

under a habitual offender statute, later declared to be

In Hicks, the jury, which was given the

10

unconstitutional, to sentence the Petitioner to a mandatory forty

11

years.

12

imposed a sentence of not less than ten years.

13

reasoned that the defendant’s interest in the process of the

14

exercise of a jury’s discretion as to penalty that was created by

15

state law was not merely a matter of state procedural law because

16

the defendant had a “substantial and legitimate expectation that

17

he will be deprived of his liberty only to the extent determined

18

by the jury in the exercise of its statutory discretion,” and

19

that the “liberty interest is one that the Fourteenth Amendment

20

preserves against arbitrary deprivation by the State.”

21

346.

22

right to the jury’s judgment.

23

appellate court that a jury might have imposed an equally harsh

24

sentence as that mandated by the invalidated habitual offender

25

statute was characterized as “frail conjecture” as to what a jury

26

might have done, and an arbitrary disregard of the defendant’s

27

right to liberty.

28

///

Had the jury been properly instructed, it could have
The Court

Id. at

The Court concluded that the petitioner was denied his
Further, the conclusion of a state

Id. at 345-46.

29

1

Here, as in Hicks, state law provided a specific method for

2

determining whether a specific sentence should be imposed.

3

Petitioner was entitled under state law to be sentenced according

4

to the pertinent sentencing statutes in light of the specific

5

findings made by the trial court in relation to those statutes.

6

Petitioner does not claim that any of those statutes has been

7

invalidated.

8

imposed by the sentencing court in accordance with the court’s

9

specific findings.

10
11

Each of the components of Petitioner’s sentence was

Petitioner was thus not deprived of any

statutory entitlement.
Petitioner cites Walker v. Deeds, 50 F.3d 670, 672-73 (9th

12

Cir. 1995), a case similar to Hicks, in which a specific

13

procedure was mandated for imposition of a habitual offender

14

statute.

15

his statutory obligation to find that it was just and proper to

16

adjudge the defendant a habitual criminal before sentencing the

17

defendant under the statute.

18

contention that the appropriate statutory findings were not made.

In Walker, the state sentencing judge failed to perform

Unlike Walker, here, there is no

19

Petitioner cites Richmond v. Lewis, 506 U.S. 40, 50 (1992),

20

in which the Court determined that a death sentence violated the

21

Eighth Amendment where the sentencing judge gave weight to an

22

unconstitutionally vague aggravating factor of commission of the

23

offense in an especially heinous, cruel, or depraved manner, and

24

a state reviewing court did not cure that error by properly re-

25

weighing the factors.

26

on the invalid factor was so arbitrary or capricious as to

27

constitute an independent due process or Eighth Amendment

28

violation.

Id. at 50.

The Court considered whether the reliance

In the present case, there is no
30

1

infirmity in the state sentencing laws, and the sentencing

2

determination was made in accordance with the pertinent statutes

3

and procedures.

4

for years as distinct from the death penalty; thus, the

5

constitutional limitations are not analogous.

6

Further, this case involves a sentence of a term

Petitioner also relies on Fetterly v. Paskett, 997 F.2d

7

1295, 1300 (9th Cir. 1993).

8

and the question whether a state had followed its statutory

9

procedures for imposing the sentence, which were necessary to

Fetterly involved a death sentence

10

render the pertinent state death penalty statute and the

11

resulting death sentence valid under the Eighth Amendment’s

12

prohibition against cruel and unusual punishment.

13

sentencing laws and procedures in Fetterly differ significantly

14

from those involved in Petitioner’s case.

15

Again, the

In sum, the authorities relied on by Petitioner regarding

16

arbitrary deprivations of liberty do not support granting

17

Petitioner relief with respect to his sentence.

18
19

3.

Dual Use of Facts

Petitioner does not cite any federal decisions forbidding

20

“dual use” of facts in an analogous sentencing context.

21

Petitioner's reliance on Brecht v. Abrahamson, 507 U.S. at 623 is

22

also misplaced.

23

prejudice that a habeas petitioner proceeding pursuant to § 2254

24

must meet to be entitled to habeas relief for a constitutional

25

violation; it does not forbid the sentencing practices or

26

statutes employed in the present case.

27
28

Brecht simply sets forth the general standard of

Further, Petitioner’s “bootstrapping” or dual use argument
was rejected by the CSC as a matter of state law.
31

Petitioner was

1

charged in count 3 with having shot into an inhabited dwelling in

2

February 2002 in violation of Cal. Pen. Code § 246; having

3

personally used a firearm within the meaning of §§ 12022.5(a)(1)

4

and 12022.53(b) and (e)(1); and having committed the offense “for

5

the benefit of, at the direction of, and in association with a

6

criminal street gang with the specific intent to promote, further

7

and assist in criminal conduct by gang members” within the

8

meaning of Cal. Pen. Code § 186.22(b)(1).9

9

Petitioner was also charged in count 5 with having engaged in the

(I CT 115.)

10

crime of street terrorism in violation of Cal. Pen. Code §

11

186.22(a), a felony, in that he did “unlawfully and actively

12

participate in a criminal street gang with knowledge that its

13

members engage in and have engaged in a pattern of criminal gang

14

activity and did promote, further and assist in felony criminal

15

conduct by gang members.”

(I CT 116.)10

Petitioner was found

16
9

17
18
19
20
21
22
23
24
25

At the time of Petitioner’s crime (February 2002) (I C.T. 115), Cal. Pen. Code § 186.22(b)(4) provided as

follows:
(b) (1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for
the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony,
in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or
she has been convicted, be punished as follows:
...
(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at
the direction of, or in association with any criminal street gang, with the specific intent to promote, further,
or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an
indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as
the greater of:
...
(B) Imprisonment in the state prison for 15 years, if the felony is a home
invasion robbery, in violation of subparagraph (A) of paragraph (1) of
subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony
violation of Section 246; or a violation of Section 12022.55.
2001 Cal. Stat. ch. 854, sec. 22.

26
10

27
28

At the time of Petitioner’s offense, Cal. Pen. Code § 186.22(a) defined the offense of street terrorism as

follows:
(a) Any person who actively participates in any criminal street gang with knowledge that its
members engage in or have engaged in a pattern of criminal gang activity, and who willfully

32

1

guilty of violating § 246 (count 3) for the benefit of a street

2

gang pursuant to § 186.22(b)(1), and was also found to have

3

committed the separate offense of street terrorism alleged in

4

count 5 in violation of § 186.22(a).

5

(XI RT 3062-63; II CT 301.)

In its decision in Petitioner’s case, the CSC noted that in

6

People v. Briceno, 34 Cal.4th 451 (2004), the issue was whether

7

Cal. Pen. Code § 1192.7(c)(28), defining any felony offense that

8

would also constitute a felony violation of § 186.22 as a

9

“serious felony,” applied only to the substantive offense of

10

street terrorism defined in § 186.22(a), or also to felonies that

11

are subject to additional punishment pursuant to the enhancement

12

for committing an offense for the benefit of a gang under

13

§ 186.22(b)(1).

14

applied to both types of felonies.

15

Briceno, the CSC cautioned that although any felony committed for

16

the benefit of a criminal street gang could be defined as a

17

serious felony under § 1192.7(c)(28), the same gang-related

18

conduct that rendered the felony serious could not be used again

19

to obtain an additional five-year sentence under

20

§ 186.22(b)(1)(B).

21
22

In Briceno, the CSC held that § 1192.7(c)(28)
(LD 5, 7.)

However, in

(Id. at 8.)

In Petitioner’s case, § 1192.7 was not in issue. Instead,
§ 12022.53(c)11 was applied by the sentencing court to add a

23
24
25

promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall
be punished by imprisonment in a county jail for a period not to exceed one year, or by
imprisonment in the state prison for 16 months, or two or three years.
2001 Cal. Stat. ch. 854, sec. 22.

26
27
28

11

At the time of Petitioner’s offense, Cal. Pen. Code § 12022.53 provided in pertinent part
as follows:
12022.53. (a) This section applies to the following felonies:

33

1

twenty-year term based on the commission of a felony specified in

2

§ 12022.53(a) – i.e., a “felony punishable by... imprisonment in

3

the state prison for life” within the meaning of §

4

12022.53(a)(17) – a violation of § 246 in which Petitioner was

5

found to have personally used or discharged a firearm.

6

decided as a matter of state law that Petitioner’s case was not

7

analogous to Briceno because the two statutes at issue in

8

Petitioner’s case were not enacted through a single initiative,

9

as with the provisions at issue in Briceno.

The CSC

Further, only one of

10

the provisions in Petitioner’s case pertained to criminal street

11

gangs, whereas two such provisions had been involved in Briceno;

12

and Petitioner was subject to the § 12022.53(c) enhancement not

13

because he committed a gang-related offense, but rather because

14

he committed “a particularly heinous crime (that is, a crime so

15

serious that it is punishable by life imprisonment).”

16

Cal.4th at 575.

17

///

Jones, 47

(LD 5, 10, 7-10.)

18
19
20
21
22
23
24
25
26
27

...
(17) Any felony punishable by death or imprisonment in the state prison for life.
...
(c) Notwithstanding any other provision of law, any person who is convicted of a felony specified
in subdivision (a), and who in the commission of that felony intentionally and personally
discharged a firearm, shall be punished by a term of imprisonment of 20 years in the state prison,
which shall be imposed in addition and consecutive to the punishment prescribed for that felony.
...
(e)(1) The enhancements specified in this section shall apply to any person charged as a principal
in the commission of an offense that includes an allegation pursuant to this section when a
violation of both this section and subdivision (b) of Section 186.22 are pled and proved.
(2) An enhancement for participation in a criminal street gang pursuant to Chapter 11
(commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition
to an enhancement imposed pursuant to this subdivision, unless the person personally used or
personally discharged a firearm in the commission of the offense.
2001 Cal. Stat. ch. 854, § 60.

28
34

1

Further, the CSC characterized § 186.22(b)(4) not as an

2

enhancement, but rather as a penalty provision that actually set

3

forth an alternate penalty for the underlying felony itself when

4

the trier determined that the defendant satisfied the specified

5

conditions.

6

provision, § 186.22(d), which had also been interpreted as a

7

penalty provision in Robert L. v. Superior Court, 30 Cal.4th 894

8

(2003).

9

As such, the provision was similar to a third

Jones, 47 Cal.4th at 576.

(LD 5, 10-11.)

Finally, also as a matter of state law, the CSC

10

distinguished People v. Montes, 31 Cal.4th 350 (2003), in which

11

the trial court imposed a life term under § 12022.53, and the

12

issue was the applicability of a parole eligibility provision in

13

§ 186.22(b)(5), which provided that a defendant who commits a

14

felony punishable by imprisonment in the state prison for life to

15

benefit a criminal street gang must serve at least fifteen years

16

before becoming eligible for parole.

17

that the minimum time provision in § 186.22(b)(5) did not apply

18

where the substantive offense was punishable by life imprisonment

19

only because of the application of § 12022.53 and not where the

20

felony by its own terms provided for a life sentence.

21

Jones, 47 Cal.4th at 577-78.

22

declined Petitioner’s invitation to construe the phrase “felony

23

punishable by... imprisonment in the state prison for life”

24

appearing in § 12022.53(a)(17) in the same fashion as the CSC had

25

construed the phrase “felony punishable by imprisonment for life”

26

in § 186.22(b)(5) in Montes.

27

sentence in Montes was imposed as a sentence enhancement, whereas

28

Petitioner’s life sentence was imposed under § 186.22(b)(4),

In Montes, the CSC held

People v.

In Petitioner’s case, the CSC

The CSC reasoned that the life

35

1

which does not set forth an enhancement, but rather an alternate

2

penalty for the underlying felony.

3

twenty-year enhancement of § 12022.53(c) was appropriate.

4

578.

5

preclude the enhancement.

6

Id.

Thus, imposition of the
Id. at

Further, the intent of the California legislature did not
Id. at 578-79.

(LD 12-14.)

Thus, review of the CSC’s decision demonstrates that

7

Petitioner’s dual use argument amounts to a state law contention

8

which the CSC rejected based on state law.

9

respect that determination.

10

This Court will

In sum, insofar as Petitioner’s due process claim actually

11

amounts to a claim made under state law, Petitioner is not

12

entitled to relief in this proceeding.

13

relying the federal authorities reviewed herein, Petitioner has

14

failed to show arbitrary action or any other violation of his

15

right to due process of law.

16

liberty interest and violations thereof are general and

17

conclusory.

18

a federal habeas petition, unsupported by specific facts, do not

19

state a basis for habeas corpus relief. Jones v. Gomez, 66 F.3d

20

199, 204 (9th Cir. 1995).

21
22

Insofar as Petitioner is

Petitioner’s allegations of a

Mere conclusions of violations of federal rights in

The Court concludes that Petitioner’s due process claim
should be denied.

23

VIII. Cruel and Unusual Punishment

24

Insofar as Petitioner may be arguing that his sentence was a

25

violation of the Eighth Amendment, Petitioner has not exhausted

26

such a claim.

27
28

In any event, Petitioner’s sentence does not appear to
exceed the statutory range of punishments for his offense, and
36

1

thus it would not appear to violate the Eighth Amendment.

2

Outside of the capital punishment context, the Eighth Amendment

3

prohibits only sentences that are extreme and grossly

4

disproportionate to the crime.

5

123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501 U.S.

6

957, 1001, (1991) (Kennedy, J., concurring)).

7

“exceedingly rare” and occur in only “extreme” cases.

8

Andrade, 538 U.S. at 72-73; Rummel, 445 U.S. at 272.

9

a sentence does not exceed statutory maximums, it will not be

United States v. Bland, 961 F.2d

Such instances are
Lockyer v.
So long as

10

considered cruel and unusual punishment under the Eighth

11

Amendment.

12

(9th Cir. 1998); United States v. McDougherty, 920 F.2d 569, 576

13

(9th Cir. 1990).

14
15

See United States v. Mejia-Mesa, 153 F.3d 925, 930

Therefore, to the extent that Petitioner’s claim is
considered, the claim should be denied.

16

IX.

17

Petitioner argues for the first time in his traverse that

Equal Protection by Uneven Application of the Law

18

California laws were unevenly applied to him.

19

6-8.)

20

claim.

21

(Trav., doc. 21,

Petitioner appears to be raising an equal protection

It is improper to raise substantively new issues or claims

22

in a traverse, and a court may decline to consider such matters.

23

Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), cert.

24

den., 514 U.S. 1026 (1995).

25

must obtain leave to file an amended petition or additional

26

statement of grounds.

27

discretion to decline to address such a claim.

28

///

Id.

To raise new issues, a petitioner

Thus, this Court should exercise its

37

1

If the Court should desire to address Petitioner’s claim,

2

then to the extent that Petitioner complains that People v.

3

Briceno, 34 Cal.4th 451 (2004), and People v. Arroyas, 96

4

Cal.App.4th 1439 (2002) should have been applied to his case,

5

Petitioner is not entitled to relief.

6

CSC distinguished the various statutes whose substance and

7

overlap were at issue in those cases from the statutes applicable

8

to Petitioner’s case, expressly rejecting Petitioner’s view of

9

the scope of the Briceno and Arroyas decisions.

As set forth above, the

(LD 5, 9-10.)

10

This Court is bound by the CSC’s interpretation and application

11

of state law.

12

Likewise, to the extent that Petitioner argues that People

13

v. Montes, 31 Cal.4th 350 (2003) and related cases should have

14

applied to preclude the enhancement, the California Supreme Court

15

distinguished the questions of statutory construction at issue in

16

Montes from those in Petitioner’s case, noting that the life

17

sentence imposed in Montes was imposed as a sentence enhancement,

18

whereas Petitioner’s life sentence was imposed as a penalty for

19

the underlying felony itself.

20

respect the California Supreme Court’s interpretation and

21

application of state law.

22

(Id. at 12-14.) This Court must

Petitioner cites Myers v. Ylst, 897 F.2d 417, 420 (9th Cir.

23

1990) for the proposition that the CSC issued conflicting

24

decisions and failed to “act alike in all cases of like nature”

25

by deciding People v. Brookfield, 47 Cal.4th 583 (2009) and

26

construing § 12022.53 as it did in Petitioner’s case.

27

the court held that the California courts violated equal

28

protection by failing to apply retroactively a state decision
38

In Myers,

1

that a defendant could establish a prima facie case of minority

2

under-representation on a jury venire by reliance on relative

3

disparities in minority representation in the general population

4

and in the venire.

5

In People v. Brookfield, 47 Cal.4th 583, the CSC determined

6

that commission of the felony of shooting at an inhabited

7

dwelling to benefit a criminal street gang pursuant to

8

§ 186.22(b)(4)(B) was a “felony punishable by imprisonment in the

9

state prison for life” within the meaning of § 12022.53(a)(17);

10

the life sentence did not constitute a sentence enhancement

11

because it was not imposed in addition to the sentence for the

12

underlying crime, but rather as an alternate penalty for the

13

offense.

14

with the CSC’s ruling in Petitioner’s case.

Brookfield, 47 Cal.4th at 590-91.

This is consistent

15

The CSC determined that if the trier also finds true a

16

sentence enhancement for firearm use, based not on firearm use by

17

the defendant, but rather on use by another participant in the

18

crime, the defendant may not be sentenced to the firearm

19

enhancement in addition to the life term.

20

based on its interpretation and application of § 12022.53(e)(2),

21

which provided that an enhancement for participation in a

22

criminal street gang pursuant to §186.20 et seq. “shall not be

23

imposed on a person in addition to an enhancement imposed

24

pursuant to § 12022.53(e) unless the person personally used or

25

personally discharged a firearm in the commission of the

26

offense.”

27

goal to reserve the most severe sentences for those who

28

personally used or discharged a firearm in the commission of a

The CSC’s decision was

Based on a discerned legislative intent, including a

39

1

gang-related crime, the CSC construed the term “enhancement

2

imposed pursuant to § 12022.53(e)” as including both a sentence

3

enhancement as well as an alternate penalty.

4

CSC expressly noted that its opinion should not be read as

5

undermining the validity of the strict distinction drawn between

6

sentence enhancements and penalty provisions in other contexts.

7

Id. at 595.

8
9

Id. at 592-96.

The

It is thus clear that Brookfield concerned a separate
statute regarding sentencing an accomplice who did not personally

10

use a firearm.

11

used a firearm.

12

circumstances and the governing statutory provisions, Petitioner

13

was not similarly situated with the defendant in Brookfield.

14

Court, therefore, concludes that in all significant respects,

15

Petitioner’s case and Brookfield were not similar.

Here, Petitioner was found to have personally
Thus, with respect to the pertinent

The

16

The Fourteenth Amendment's Equal Protection Clause “is

17

essentially a direction that all persons similarly situated

18

should be treated alike.”

19

Living Center, 473 U.S. 432, 439 (1985).

20

shown a violation of the Fourteenth Amendment’s requirement of

21

equal protection of the laws.

22

recommended that Petitioner’s equal protection claim be denied.

City of Cleburne, Tex. v. Cleburne
Petitioner has not

Accordingly, it will be

23

X.

24

On April 21, 2011, Petitioner filed a motion to supplement

Motion to Supplement Exhibits and Argument

25

his exhibits and argument in which he seeks to expand the record

26

to add three sworn documents, including a declaration of James

27

Batten made on June 17, 2009; an affidavit of Charles Clay which

28

appears to have been dated May 19, 2008; and Petitioner’s
40

1

declaration dated August 3, 2009.

2

Clay relate primarily to the circumstances of the shooting;

3

Petitioner’s declaration addresses his conversations with his

4

defense counsel concerning people whom Petitioner wanted to call

5

as defense witnesses, namely, Lamont Wilson, Charles Clay, James

6

Batten, and Samuel Miles.

7

claim of ineffective assistance of counsel.

8
9

The declarations of Batten and

These matters relate to Petitioner’s

Respondent opposes the motion on the ground that Petitioner
has not met his burden of showing that the state court’s decision

10

was contrary to, or an unreasonable application of, clearly

11

established federal law pursuant to § 2254(d)(1).

12

Cullen v. Pinholster, 131 S.Ct. 1388, the evidence Petitioner

13

seeks to add to the record has no bearing on this Court’s review.

14

As previously noted, it is unnecessary to decide whether

Thus, under

15

this Court’s review is de novo or an independent review of the

16

record for an objectively unreasonable application of clearly

17

established federal law because under either standard, Petitioner

18

has not shown that he is entitled to relief.

19

to an independent review of the record,

20

shows that Petitioner did not meet his burden of showing that he

21

was entitled to relief under § 2254(d)(1).

22

However, pursuant

the foregoing analysis

If review is properly de novo, Rule 7 of the Rules Governing

23

Section 2254 Cases in the United States District Courts (Habeas

24

Rules) permits a judge to direct the parties to expand the record

25

by submitting additional materials relating to the petition.

26

is appropriate to expand the record to include materials not

27

before a trial court where the purpose is to clarify the relevant

28

facts and provide meaningful federal review of constitutional
41

It

1
2

claims. Vasquez v. Hillery, 474 U.S. 254, 258, 260 (1986).
Here, the materials would not clarify the relevant facts or

3

provide meaningful federal review of his claim of ineffective

4

assistance of counsel.

5

reflects that in denying Petitioner’s second new trial motion,

6

the state court relied on the evidence and gave significant

7

weight to its findings on the credibility of the witnesses.

8

ruling on Petitioner’s second new trial motion, the trial court,

9

which had the opportunity to view all the evidence and personally

10

observe the demeanor of all the witnesses at both of Petitioner’s

11

trials, concluded that the physical evidence was not inconsistent

12

with Petitioner’s guilt.

13

stated that although the credibility of Demont Wilson had been

14

questioned, he was testifying credibly and honestly, and the

15

testimony of Elizabeth Brown supported his testimony to some

16

degree.

17

faith in the new witness (apparently a reference to Lamont

18

Wilson) because he was a “gang-banger” to the extent that

19

anything he said was questionable.

20

serious question of the identity of the shooter was presented and

21

believed that Petitioner was the person who was involved.

22

3062.

23

The record already before this Court

(XI RT 3061.)

In

Further, the trial court

The Court expressly stated that it did not have a lot of

Id.

The court noted that no

Id. at

Likewise, the CCA interpreted the record as not disclosing

24

that any of the evidence Petitioner presented ever existed prior

25

to trial because it was not shown that any witnesses were willing

26

to testify at trial as to matters set forth in their post-trial

27

declarations; the record was devoid of adequate explanations for

28

the witnesses’ failure to offer their evidence earlier; and the
42

1

testimony of DeOcean Williams and Demont Wilson at Petitioner’s

2

second trial was inconsistent with the presence of Lynn Chapman.

3

(LD 1, 7-9.)

4

The affidavit of Charles Clay that Petitioner seeks to bring

5

before the Court indicates that Clay was outside with Demont

6

Wilson’s brother, Lamont, before, during, and after the shots

7

were fired, and that Demont Wilson was inside his apartment

8

“[b]efore and during the shooting.”

9

declaration in support of Petitioner’s second new trial motion,

10

Clay had declared that he was walking outside with Demont Wilson

11

before the shooting, but that Demont Wilson was inside the

12

apartment at the time the shots were fired.

13

Although Clay explains that he had not been asked questions by

14

law enforcement at the time of the incident and was not aware

15

that criminal charges had been filed (mot. at 7), his

16

inconsistent statements nevertheless do not clarify the relevant

17

facts or render this Court’s review more meaningful.

18

(Motion at 7.)

In his

(II CT 394-95, 398.)

In his declaration submitted in support of Petitioner’s

19

second new trial motion, James Batten, a co-defendant, declared

20

that he was personally present and witnessed the shooting; Demont

21

Wilson was inside his apartment as the shots were fired from

22

outside the gate; Petitioner was not present and was not the

23

shooter.

24

to have added to the record, Batten declares that he could not

25

see who fired the shots; before and during the time the shots

26

were fired, he was pursuing the victim, Demont Wilson, and was

27

kicking on the door of Wilson’s apartment as Wilson was pressing

28

his body against the door so Batten could not kick it in.

(II CT 400.)

In the declaration which Petitioner seeks

43

In

1

this position, it was impossible for either Wilson or Batten to

2

see who had fired the shots.

3

statements of Batten, an admitted participant in the gang

4

conflict, would not clarify the record or inform this Court’s

5

review.

6

establish why his information concerning his interaction with

7

counsel in 2002 and thereafter was not presented earlier.

8

(Mot., 5.)

Again, the inconsistent

Regarding Petitioner’s declaration, Petitioner does not

In sum, the Court concludes that the record should not be

9

expanded to include the three sworn documents; however, even if

10

it were admitted, it would not alter the analysis or result of

11

Petitioner’s claim of the ineffective assistance of counsel.

12

Accordingly, it will be recommended that the motion to expand the

13

record be denied.

14

XI.

15

In his motion to supplement the record, Petitioner asks this

Request to Amend the Petition

16

court to consider the merits of the petition and to grant the

17

petition, as well as to consider “the record that supports my

18

claim of innocence....”

19

urges that to the extent that Petitioner is seeking to amend his

20

petition to add an actual innocence claim, he should not be

21

permitted to do so.

22

(Mot. 4.)

In its opposition, Respondent

If Petitioner’s request were considered to be a motion to

23

amend the petition to state a claim of actual innocence, it

24

should be denied because Petitioner has delayed without an

25

adequate reason in making such a request.

26

that amendment of the petition to add such a claim would be

27

futile.

28

///
44

Further, it appears

1

A petition for a writ of habeas corpus may be amended or

2

supplemented as provided in the rules of procedure applicable to

3

civil actions to the extent that the civil rules are not

4

inconsistent with any statutory provisions or the rules governing

5

section 2254 cases.

6

Civ. P. 15(a) may be used to permit the petitioner to amend the

7

petition.

8

Fed. R. Civ. P. 15(a) provides with respect to amendments before

9

trial that a party may amend its pleading once as a matter of

10

course within twenty-one days after service of the pleading, a

11

required responsive pleading, or a motion under Rule 12(b), (e),

12

or (f), whichever is earlier.

13

amend its pleading only with the opposing party’s written consent

14

or the Court’s leave.

15

leave when justice so requires.

28 U.S.C. § 2242; Habeas Rule 12.

Fed. R.

Withrow v. Williams, 507 U.S. 680, 696 n.7 (1993).

In all other cases, a party may

Further, the Court should freely grant

16

Factors to be considered when ruling on a motion to amend a

17

habeas corpus petition include bad faith, undue delay, prejudice

18

to the opposing party, futility of the amendment, and whether or

19

not the party has previously amended his pleadings.

20

Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

21

disallowed if the amendment would be futile, such as where the

22

amended matter is duplicative or patently frivolous, or where the

23

pleading does not present new facts but only new theories,

24

provides no satisfactory explanation for failure fully to develop

25

the contentions originally.

Bonin v.

Amendment may be

and

Ibid.

26

Here, on April 21, 2011, Petitioner filed the motion in

27

which his cryptic statement about a claim of innocence appeared.

28

Thus, his request was filed over a month after the answer was
45

1

filed on March 15, 2011.

2

in seeking an amendment or in presenting declarations from third

3

parties that were obtained in 2009.

4

serial development of sources of evidence that is not

5

inconsistent with bad faith.

6

would rest his claim of innocence, when viewed in light of the

7

record before this Court, contains many inconsistencies and bases

8

for negative credibility determinations that would preclude a

9

finding of innocence.

10

Petitioner has not explained his delay

Petitioner’s case reflects a

The evidence upon which Petitioner

It will be recommended that to the extent that Petitioner

11

seeks to amend his petition to allege a claim of actual

12

innocence, the motion be denied.

13

XII.

14

Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

15

appealability, an appeal may not be taken to the Court of Appeals

16

from the final order in a habeas proceeding in which the

17

detention complained of arises out of process issued by a state

18

court.

19

U.S. at 336.

20

the applicant makes a substantial showing of the denial of a

21

constitutional right.

22

petitioner must show that reasonable jurists could debate whether

23

the petition should have been resolved in a different manner or

24

that the issues presented were adequate to deserve encouragement

25

to proceed further.

26

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

27

certificate should issue if the Petitioner shows that jurists of

28

reason would find it debatable whether the petition states a

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue only if

§ 2253(c)(2).

Under this standard, a

Miller-El v. Cockrell, 537 U.S. at 336

46

A

1

valid claim of the denial of a constitutional right and that

2

jurists of reason would find it debatable whether the district

3

court was correct in any procedural ruling.

4

529 U.S. at 483-84.

5

Slack v. McDaniel,

In determining this issue, a court conducts an overview of

6

the claims in the habeas petition, generally assesses their

7

merits, and determines whether the resolution was debatable among

8

jurists of reason or wrong.

9

applicant to show more than an absence of frivolity or the

Id.

It is necessary for an

10

existence of mere good faith; however, it is not necessary for an

11

applicant to show that the appeal will succeed.

12

Cockrell, 537 U.S. at 338.

Miller-El v.

13

A district court must issue or deny a certificate of

14

appealability when it enters a final order adverse to the

15

applicant.

16

Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could

17

debate whether the petition should have been resolved in a

18

different manner.

19

of the denial of a constitutional right.

20
21

Petitioner has not made a substantial showing

Accordingly, it will be recommended that the Court decline
to issue a certificate of appealability.

22

XIII.

Recommendations

23

Accordingly, it is RECOMMENDED that:

24

1)

The petition for writ of habeas corpus be DENIED; and

25

2)

Petitioner’s motion to expand the record be DENIED; and

26

3)

Petitioner’s request to amend the petition be DENIED;

4)

Judgment be ENTERED for Respondent; and

27
28

and

47

1
2

5)

The Court DECLINE to issue a certificate of

appealability.

3

These findings and recommendations are submitted to the

4

United States District Court Judge assigned to the case, pursuant

5

to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of

6

the Local Rules of Practice for the United States District Court,

7

Eastern District of California.

8

being served with a copy, any party may file written objections

9

with the Court and serve a copy on all parties.

Within thirty (30) days after

Such a document

10

should be captioned “Objections to Magistrate Judge’s Findings

11

and Recommendations.”

12

and filed within fourteen (14) days (plus three (3) days if

13

served by mail) after service of the objections.

14

then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

15

§ 636 (b)(1)(C).

16

objections within the specified time may waive the right to

17

appeal the District Court’s order.

18

1153 (9th Cir. 1991).

Replies to the objections shall be served

The Court will

The parties are advised that failure to file

Martinez v. Ylst, 951 F.2d

19
20

IT IS SO ORDERED.

21

Dated:
ie14hj

September 12, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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26
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