Howard v. Cate

Filing 6

ORDER signed by Magistrate Judge John F. Moulds on 1/21/09 ORDERING that Respondent is directed to file a response to petitioner's application for stay and abeyance within 30 days from the date of this order, the Clerk shall serve a copy of this order together with a copy of petitioner's petition for writ of habeas corpus 1 , and application for stay and abeyance 2 , and an Order Re Consent or Request for Reassignment on Michael Patrick Farrell, Senior Assistant Attorney General. (Attachments: # 1 petition, # 2 abeyance) (Becknal, R)

Case 2:09-cv-00149-JFM 1 2 3 4 5 A tto rn e ys for Petitioner 6 7 8 9 10 11 12 13 v. 14 15 16 R e sp o n d e n t. 17 18 19 20 21 22 23 24 25 26 27 28 JELANI KITWANA HOWARD, P e t i t io n e r , C L IF F GARDNER State Bar No. 93782 L A Z U L I WHITT S ta te Bar No. 221353 1 9 Embarcadero Cove Oakland, CA 94606 T e l: [phone] F a x : [phone]

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U N I T E D STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

M A T T H E W CATE, Head of the C a lif o r n ia Department of Corrections,

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N o.

P E T IT IO N FOR WRIT OF HABEAS CORPUS AND M E M O R A N D U M OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 2:09-cv-00149-JFM 1 2 3 4 5 A tto rn e ys for Petitioner 6 7 C L IF F GARDNER State Bar No. 93782 L A Z U L I WHITT S ta te Bar No. 221353 1 9 Embarcadero Cove Oakland, CA 94606 T e l: [phone] F a x : [phone]

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U N I T E D STATES DISTRICT COURT 8 F O R THE EASTERN DISTRICT OF CALIFORNIA 9 10 JELANI KITWANNA HOWARD, 11 P e t i t io n e r , 12 13 14 15 16 P e titio n e r Jelani Howard, through his counsel, files this Petition for Writ of 17 H a b e a s Corpus. By this verified petition petitioner alleges as follows: 18 19 I. 20 P e titio n e r is unlawfully confined by the California Department of Corrections 21 p u rs u a n t to a judgment of the Superior Court for Sacramento in People v. Howard, No. 22 99F10330. 23 24 II. 25 P e titio n e r was convicted of murder, attempted murder, two counts of battery of a 26 c o -h a b ita n t, assault with a deadly weapon and a prior conviction allegation. Allegations 27 th a t he personally fired a weapon with respect to the murder and attempted murder 28 Petition for Writ of Habeas Corpus and Memorandum In Support Thereof 1 v. M A T T H E W CATE, Head of the C a lif o r n ia Department of Corrections. ) ) ) ) ) ) ) ) N o.

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o ff en ses were found true. In connection with the count one charge, the trial court sen tenc ed petitioner to a 25 year to life term and then doubled it pursuant to California's "tw o -strik es law" based on the prior conviction which had been found true. The court a d d e d a 25 year-to-life term for the firearm enhancement found true in connection with c o u n t one and a 25 year-to-life term for the firearm use allegation found true in c o n n e ctio n with count two. The court imposed an upper term of nine years on the count tw o attempted murder, then doubled it under the two strikes law for a total of 18 years. The court added a one-third the middle term of one year (doubled to two years) for each o f the charges in counts four and five. The court stayed sentence on the count three ch arg e, and added a five year term for the serious felony prior conviction. The total term im p o s e d was 27 years in determinate sentencing time, plus four consecutive 25 year-tolif e terms.

III. P e titio n e r pled not guilty. He was tried by jury.

IV . P etitio n er appealed his conviction to the California Court of Appeal, Third A p p e lla te District. The appellate court affirmed the convictions, but found the state had p re s e n te d insufficient evidence of the prior conviction allegation. People v. Howard, 2 0 0 3 WL 361247, *11-12 (2003). The case was remanded back to the Superior Court for re -s e n te n c in g . Mr. Howard's Petition for Review to the state supreme court was denied o n April 30, 2003. People v. Howard, S114565, Order of April 30, 2003, attached as E x h ib it A.

V. T h e trial court re-sentenced Mr. Howard without resort to the two-strikes law on December 19, 2003. CT II 5. Mr. Howard appealed. The appellate court vacated the Petition for Writ of Habeas Corpus and Memorandum In Support Thereof 2

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s e n te n c e and remanded the case for re-sentencing again. People v. Howard, 2005 WL 4 0 0 3 4 , *2 (2005). Mr. Howard's Petition for Review to the state supreme court was d e n ie d on March 23, 2005. People v. Howard, S131464, Order of March 23, 2005, a tta c h e d as Exhibit B.

V I. T h e trial court imposed sentence a third time on August 12, 2005. The court im p o s e d a 25 year-to-life term for the murder. RT III 14. The court added a 25 year-tolif e term for the firearm enhancement found true in connection with count one, and a 25 ye a r- to -lif e term for the firearm use allegation found true in connection with count two. RT III 14-15. The court imposed a consecutive upper term of nine years on the count two a tte m p te d murder, added consecutive one-third the middle terms of one year for each of th e charges in counts for and five and imposed a concurrent three-year term on the count th re e charge. RT III 15. The total term imposed was 11 years in determinate sentencing tim e , plus three consecutive 25 year-to-life terms. RT III 15-16.

V II. M r. Howard timely filed a Notice of Appeal. 1 CT III 57. The appellate court a f f irm e d the sentence on October 11, 2006 and the state supreme court denied review on D e c e m b e r 20, 2006. People v. Howard, 2006 WL 2912544 (2006); People v. Howard, S 1 4 7 8 9 5 , Order of December 20, 2006, attached as Exhibit C. The time within which to s e e k certiorari expired 90 days later, on March 19, 2007.

TIMELINESS ALLEGATIONS V II I. This petition is timely pursuant to 28 U.S.C. § 2244(d). The following facts now k n o w n to petitioner support this claim:

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T h e state appellate court remanded the case twice for resentencing. The case did not become final until (and the one-year statute began to run on) March 19, 2007.

M r. Howard had a "properly filed application for State p o s t-c o n v ic tio n . . . review" pursuant to 28 U.S.C. § 2244(d)(2) p e n d in g in the state superior, appellate and supreme courts from A p ril 10, 2007 through February 13, 2008. His one-year statute ran f o r 22 days (from March 19, 2007 until April 10, 2007) until it was to lle d by operation of 28 U.S.C. § 2244(d)(2).

T h e statute began to run again on February 13, 2008 -- when the s ta te supreme court denied the state petition Mr. Howard had p e n d in g there. At that point, he had 343 days left in his one-year p e rio d (365 - 22 = 343).

O n February 13, 2008, Mr. Howard had 343 days within which to f ile his federal habeas petition -- or until January 22, 2009.

EXHAUSTED CLAIMS IX . A s to the matters raised in paragraph X-XII of this petition, no other petitions for w rit of habeas corpus have been filed. Petitioner has no adequate remedy at law.

X. P e titio n e r's judgment of conviction has been unlawfully and unconstitutionally im p o se d in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth a n d Fourteenth Amendments to the United States Constitution. The trial court violated Petition for Writ of Habeas Corpus and Memorandum In Support Thereof 4

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D u e Process when it allowed the state to introduce prior bad acts evidence and instructed th e jury it could use that evidence to determine whether petitioner honestly and re a so n a b ly believed in the need for self-defense. The following facts now known to p e titio n e r support this claim:

Petitioner Jelani Howard was charged with the murder of Lamonte H a m m o n d and the attempted murder of Chico Stokes arising out of a F e b ru a ry 19, 2000 shooting. CT 184-185. Mr. Howard admitted the shooting, but claimed he fired in self-defense.

In order to rebut this defense, and over objection, the state in tro d u ce d evidence of two uncharged acts of violence involving Mr. H o w a rd , both occurring years earlier. Neither of these uncharged o f f e n s e s involved a claim of self-defense at all.

A t the time, of the February 19, 2000 shooting, Mr. Howard was liv in g in San Francisco, California and attending San Francisco City C o lleg e . RT 976. He was dating Aretha Armstrong who lived in S a c ra m e n to , California. RT 976.

O n February 18, 2000, after finishing math class, Mr. Howard took th e bus to Sacramento to see Aretha. RT 976. Although Mr. H o w a rd owned a car his grandmother had bought him, he was taking th e bus because Aretha had crashed the car several weeks earlier. RT 977. Aretha was going to use her tax return money to pay for the re p a irs . RT 980. Aretha told Mr. Howard that the tax return check h a d arrived. RT 982. When he arrived in Sacramento, they went to a bank to cash the check and then watched movies together at

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A re th a 's apartment. RT 984.

T h e next morning, Aretha asked if she could have some of the m o n e y back she had given Mr. Howard for the car repairs because it w a s her son's birthday and she wanted to buy him something. RT 9 8 5 . Ultimately, they got into an argument, Mr. Howard slapped A re th a and she went to a friend's house. RT 985-987.

A b o u t 11 p.m. that night, Mr. Howard went to find Aretha at her f rie n d Kelly Clark's apartment. RT 993. He was planning on h e a d in g back to San Francisco and wanted to give Aretha the money sh e had asked for. RT 992-993. Outside the apartment, Mr. Howard h e a rd loud music. RT 1003.

M r. Howard knocked on the door. RT 1003. Kelly opened the door an d said Aretha was not there. RT 1003. Mr. Howard asked where sh e was. RT 1003. Kelly walked away from the open door; Mr. H o w a rd walked inside because he wanted to find Aretha, give her th e money and then go. RT 1004, 1006.

K e lly's boyfriend Lamonte Hammond was inside the apartment s ittin g at the dining room table. RT 1004. As Mr. Howard came in to the apartment, Mr. Hammond said "What's up? She's not here." RT 1004. Hammond seemed "confrontational" and was wearing the co lo r blue which was a Crip color. RT 1005, 1012. Mr. Howard a d m i tte d that in the early 1990's he belonged to the Bloods gang or E a st Side Piru. RT 1041. At the time of trial, however, he had not b e e n a gang member for several years. RT 1041.

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M r. Howard also saw Larry Holliman or C-Crazy sitting in the liv in g ro o m . RT 1007. He was looking at Mr. Howard in a menacing w a y or "mad-dogging" him. RT 1007-1008.

H am m o n d got up from the table and said "what's up motherfucker, sh e's not here." RT 1011. His tone of voice told Mr. Howard "there w a s going to be a problem." RT 1011. Another man, Chico Stokes, w a s standing to Mr. Howard's right. RT 1012.

H a m m o n d walked towards Mr. Howard with Kelly standing between th e m , pushed Kelly aside and lifted his shirt, revealing a gun in his w a istb a n d . RT 1016. Believing that Hammond was going to shoot, M r. Howard grabbed the gun from him. RT 1017. Hammond asked w h a t Mr. Howard was "gonna do" and moved towards him. RT 1 0 1 7 . Mr. Howard pulled the trigger but nothing happened, he p u lle d it several more times and the gun went off. RT 1018.

H a m m o n d fell to the floor. RT 1018. Mr. Howard did not shoot H a m m o n d again after he fell to the ground. RT 1082. Hammond d ie d at the scene. RT 561.

M r. Howard saw Stokes coming towards. RT 1018. Stokes grabbed M r. Howard's arm and Mr. Howard shot him once. RT 1019.

P r o s e c u tio n witness Orlando Johnson confirmed that Stokes grabbed M r. Howard's arm before he was shot. RT 636. Sacramento sh e rif f 's deputy Will Bayles also confirmed that Stokes later told him in the hospital that he "tried to fight the guy who had the gun." RT

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M r. Howard could not "believe" what just happened. RT 1022. He d id not feel like he had an opportunity to escape once he grabbed the g u n from Hammond and Hammond continued moving toward him. RT 1144. Because he did not consider himself a "killer," Mr. H o w a rd then put the gun in his own mouth and pulled the trigger. RT 1023. The gun did not go off. RT 1023.

R o n Wilson lived across the street from where the shooting occurred. RT 1146. After hearing several gunshots that night, he saw a man o u ts id e the complex place gun in his mouth and pull the trigger. RT 1 1 4 6 . The gun did not go off. RT 1146.

T h e state's theory was that the shooting was not in self-defense, but w a s a premeditated killing.

In light of the two theories presented, and Mr. Howard's admission th a t he did the shooting, the trial court recognized the only issue in th e case was petitioner's intent. RT 98-99. "[Did] defendant . . . h a v e the actual belief in the necessity to defend?" RT 98. The p ro s e c u tio n proposed to use other crimes evidence -- drive-by s h o o tin g s from 1992 and 1995 -- on the issue of intent and to rebut M r. Howard's claim of self-defense or imperfect self-defense by s h o w in g "he's been violent in the past, the aggressor in the past." RT 69; CT 145-146. Defense counsel argued that the 1992 and 1995 d riv e -b y shootings were so dissimilar that the evidence "has a b so lu te ly no relevance to his state of mind" in the February 2000

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s h o o tin g s . CT 175.

P r io r to the state's presentation of the prior bad acts evidence, the c o u rt instructed the jury:

"You are about to hear evidence that the defendant may have c o m m itte d crimes other than that for which he is on trial. This evidence, if believed, . . . may be considered by you . . . if it tends to show the existence of the specific intent which is a necessary element of the crimes charged in Counts One and T w o , whether the defendant had an actual belief in the n e c es s ity to defend himself, or whether the defendant had an a c tu a l and reasonable belief in the necessity to defend h im s e lf ." RT 1154. W ith respect to the 1992 gang-related drive-by shooting, the state p re se n te d evidence showing that in 1992, Mr. Howard fired three sh o ts at a Crips gang member in another car and later pled guilty to a s s a u lt with a deadly weapon. RT 1029, 1156-1166.

W ith respect to the 1995 gang-related drive-by shooting, the state p re se n te d evidence that in 1995 Mr. Howard fired several shots from a car, wounding Karamel Haynes. RT 1259-1274, 1302, 1309.

T h e trial court permitted the state to introduce this evidence over o b je c tio n and instructed the jury it could rely on these prior violent a c ts in assessing whether Mr. Howard was acting in self-defense on th e night of February 19, 2000. RT 98-100; 1154.

O n appeal, petitioner contended the trial court's actions violated his f e d e ra l constitutional rights to Due Process and a fair trial. Petitioner raised this claim on appeal in state court and presented it

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to the state supreme court as well.

X I. P e titio n e r's judgment of conviction has been unlawfully and unconstitutionally im p o se d in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth a n d Fourteenth Amendments to the United States Constitution. The trial court's joinder o f counts violated the federal constitution because it prejudiced petitioner's right to a fair

trial. The following facts now known to petitioner support this claim:

P e titio n e r incorporates by reference all factual allegations set forth above.

O n January 14, 2002, Mr. Howard was charged with two separate sets of crimes. The state alleged that on October 6, 1999, Mr. H o w a rd committed the crimes of assault with a deadly weapon (c o u n t four) and battery on a co-habitant (count five). CT 185. The s ta te also alleged that on February 19, 2000, Mr. Howard committed th e crimes of murder (count 1), attempted murder (count 2) and b a tte ry on a co-habitant (count 3). CT 184.

P r io r to trial, the defense moved to sever the two distinct sets of c rim e s . CT 132. The trial court denied the motion. RT 79-81. O n appeal, in state court petitioner contended that the trial court's re f u sa l to sever counts violated his federal constitutional rights to D u e Process and a fair trial. He raised this claim on appeal in state c o u rt and presented it to the state supreme court as well.

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U N E X H A U S T E D CLAIMS X II. P e titio n e r's judgment of conviction has been unlawfully and unconstitutionally im p o se d in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth a n d Fourteenth Amendments to the United States Constitution. Based on information and b e l ie f , petitioner alleges:

T h e state failed to properly disclose, and trial counsel independently f a iled to discover and present, any and all evidence which would h a v e impeached the testimony of numerous prosecution witnesses at tria l, including Kelly Clark, Sherry Clark, Orlando Johnson and L a rry Holliman, as well as the witnesses who testified to the prior u n c h a rg e d acts of violence, including information which would show a bias on the part of these witnesses toward the prosecution. This e v id e n c e includes pending criminal charges and other impeachment e v id e n c e. Such evidence was both favorable and material, and the state's failure to disclose this evidence, and defense counsel's failure to discover and present it, violated petitioner's rights as set forth in B r a d y v. Maryland, 373 U.S. 83 (1963) and Strickland v. W a s h in g to n 466 U.S. 668 (1984).

N e w evidence supports petitioner's claim of self-defense and u n d e rc u ts the state's theory of first degree murder, including the e v id e n c e described above, and evidence showing petitioner did not b rin g a gun to the apartment on the night of the shooting.

W H E R E F O R E , petitioner prays that this Court:

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Take judicial notice of the transcripts and court records in People v.

H o w a r d , C041099, People v. Howard, C045844, and People v. Howard, C050579;

Hold this case in abeyance pursuant to petitioner's

c o n tem p o ra n e o u sly filed "Application to Hold Pending Federal Habeas Petition in A b e ya n c e , " to permit petitioner to exhaust in state court potentially dispositive claims;

Should relief not be provided in state court, permit petitioner to

a m e n d his federal petition and order respondent to file and serve a certified copy of the re c o rd on appeal and show cause why petitioner is not entitled to the relief sought;

After full consideration of the issues raised in the petition, vacate the

ju d g m e n t and sentence imposed upon petitioner or, in the alternative,

Permit discovery and an evidentiary hearing at which petitioner may

o f f er proof concerning the allegations in this petition; and

Grant such other and further relief as may be appropriate.

Respectfully submitted, C L IF F GARDNER L A Z U L I WHITT /s/ Cliff Gardner By Cliff Gardner A tto rn e y for Petitioner

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V E R IF I C A T I O N

I, Cliff Gardner, declare that I am an attorney for petitioner Jelani Howard. I make th is verification for petitioner because of his absence from the county where I have my o f f ice . I have read the attached petition and, except for those matters alleged in in f o rm a tio n and belief, I believe the matters stated therein to be true. On that basis, I a lle g e they are true.

I declare under penalty of perjury that the foregoing is true and correct.

E x e c u te d this 15th day of January, 2009 at Oakland, California.

/s / Cliff Gardner C lif f Gardner

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Case 2:09-cv-00149-JFM 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 v. C L IF F GARDNER State Bar No. 93782 L A Z U L I WHITT S ta te bar No. 221353 1 9 Embarcadero Cove Oakland, CA 94606 T e l: [phone] F a x : [phone] A tto rn e ys for Petitioner

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U N I T E D STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

JELANI KITWANNA HOWARD, P e t i t io n e r , M A T T H E W CATE, Head of the C a lif o r n ia Department of Corrections, R e sp o n d e n t.

) ) ) ) ) ) ) ) ) )

N o.

M E M O R A N D U M OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS

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T A B L E OF CONTENTS T A B L E OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii S T A T E M E N T OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 S T A T E M E N T OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. B. C. D. M r. Howard's Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 T h e State's Witnesses To The Shooting . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 T h e Forensic Evidence Undercuts The State's Theory . . . . . . . . . . . . . . . 1 1 P rio r Bad Acts Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3

A R G U M EN T . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 T H E CURRENT PETITION IS TIMELY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 A. B. C. In tro d u c tio n And Statutory Background . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 T h e Case Was Final On Appeal On March 19, 2007. . . . . . . . . . . . . . . . . 1 6 B e c au s e Mr. Howard Tolled The One-Year Period From April 10, 2007 T h ro u g h February 13, 2008, His One-Year Period Expires On January 22, 2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7

T H E TRIAL COURT VIOLATED PETITIONER'S RIGHT TO DUE PROCESS AND A FAIR TRIAL BY ADMITTING IRRELEVANT AND P R E JU D I C IA L OTHER CRIMES EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . 1 9 A. B. T h e Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 9 Admission Of The Other Acts Evidence Violated Due Process And R e q u ire s That The Writ Be Granted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 S e c tio n 2254(d) Does Not Bar Relief Because The State Court Refused To Consider Facts Which Were Plainly Relevant To The Constitutional Issu e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5

T H E TRIAL COURT'S REFUSAL TO SEVER COUNTS DENIED MR. H O W A R D HIS FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL AND TO A TRIAL BY AN UNBIASED JURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 A. B. The Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 T h e October 1999 Assault And Battery Charges Were Not Properly Joined With The February 2000 Charges . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 1. E v id e n c e of the separate crimes was not cross-admissible. . . . . . . 3 0

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T h e October 1999 assault with a deadly weapon evidence w o u ld not have been admissible at trial on the February 2000 murder, attempted murder and battery of a co-habitant charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 0 T h e October 1999 battery of a co-habitant evidence would h a v e had limited admissibility at trial on the February 2000 m u rd e r, attempted murder and battery of a co-habitant charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2

T h e trial court never provided a cautionary instruction to the jury te llin g them not to consider evidence of one set of the offenses as e v id e n c e establishing the other set of offenses . . . . . . . . . . . . . . . . 3 3

Section 2254(d) Does Not Bar Relief Because The State Court Refused To Consider Facts Which Were Plainly Relevant To The Constitutional Issu e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5

C O N C L U S IO N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8

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T A B L E OF AUTHORITIES F E D E R A L CASES Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998) . . . . . . . . . . . . . . . 2 8 B o w e n v. Roe, 188 F.3d 1157 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . 1 5 B o y d v. United States, 142 U.S. 450 (1892) . . . . . . . . . . . . . . . . . . . . 2 2 B r a d le y v. Duncan, 315 F.3d 1091 (9th Cir. 2002) . . . . . . . . . . . . . . 2 6 B r e c h t v. Abrahamson, 507 U.S. 619 (1993) . . . . . . . . . . . . . . . . . . . 2 4 B r in e g a r v. United States, 338 U.S. 160 (1949) . . . . . . . . . . . . . . . . . 2 2 B r u to n v. United States, 391 U.S. 123 (1968) . . . . . . . . . . . . . . . . . . 2 2 D r e w v. United States, 331 F.2d 85 (D.C.Cir. 1964) . . . . . . . . . . . . . 2 9 F e a th e rs to n e v. Estelle, 948 F.2d 1497 (9th Cir. 1991) . . . . . . . . . . . 2 9 H e n ry v. Estelle, 993 F.2d 1423 (9th Cir. 1993) . . . . . . . . . . . . . . . . 22 . . . . . . . . . . . . . . 27

L a n c a s te r v. Adams, 324 F.3d 423 (6th Cir. 2003)

L in d h v. Murphy, 521 U.S. 320 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 2 5 L ise n b a v. California, 314 U.S. 219 (1991) . . . . . . . . . . . . . . . . . . . . 2 2 L o c k y er v. Andrade, 538 U.S. 63 (2003) . . . . . . . . . . . . . . . . . . . . . . 2 6 M c K in n e y v. Rees, 993 F.2d 1378 (9th Cir. 1993) . . . . . . . . . . . . . . . 2 2 O 'N e il v. McAnnich, 513 U.S. 432 (1995) . . . . . . . . . . . . . . . . . . . . . 2 4 P a rk v. California, 202 F.3d 1073 (9th Cir. 2000) . . . . . . . . . . . . . . . 2 8 P e n ry v. Johnson, 532 U.S. 782 (2001) . . . . . . . . . . . . . . . . . . . . . . . 2 6 T a y lo r v. Maddox, 366 F.3d 992 (9th Cir. 2004) . . . . . . . . . . . . . . . . 2 6 U n ite d States v. Bronco, 597 F.2d 1300 (9th Cir. 1979) . . . . . . . . . . 3 3 U n ite d States v. Lane, 474 U.S. 438 (1985) . . . . . . . . . . . . . . . . . . . . 2 8 U n ited States v. Lewis, 787 F.2d 1318 (9th Cir. 1986) . . . . . . . . . . . 28

W illia m s v. Taylor, 529 U.S. 362 (2000) . . . . . . . . . . . . . . . . . . . . . . 2 6 S T A T E CASES People v. Barrios, 163 Cal. App.4th 270 (2008) . . . . . . . . . . . . . . . . 3 2 Petition for Writ of Habeas Corpus and Memorandum In Support Thereof

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P e o p le v. Ewoldt, 7 Cal.4th 380 (1994) . . . . . . . . . . . . . . . . . . . . . . . 3 0 P e o p le v. Haston, 69 Cal.2d 233 (1968) . . . . . . . . . . . . . . . . . . . . . . 31

P e o p le v. McDermott, 28 Cal.4th 946 (2002) . . . . . . . . . . . . . . . . . . . 3 0 P e o p le v. Musselwhite, 17 Cal.4th 1216 (1998) . . . . . . . . . . . . . . . . . 2 8

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S T A T E M E N T OF THE CASE

J a n u a ry 14, 2002, the Sacramento County district attorney filed a six count in f o rm a tio n against defendant Jelani Howard. CT 184.1 The information charged as f o l lo w s :

1) Count one charged Mr. Howard with a February 19, 2000 murder in v io latio n of section 187. CT 184. This count added an allegation that Mr. H o w a rd personally used a firearm in violation of section 12022.53(d). CT 184. 2 5 ) Count two charged Mr. Howard with a February 19, 2000 attempted m u r d e r in violation of sections 187 and 664. CT 184. This count also a d d e d a firearm use allegation in violation of section 12022.53(d). CT 185. 3 ) Count three charged Mr. Howard with a February 19, 2000, battery on a c o -h a b ita n t in violation of section 273.5. CT 185. 4 ) Count four charged Mr. Howard with an October 6, 1999 assault with a d e a d ly weapon in violation of Penal Code section 245(a)(1). CT 185. 5) Count five charged Mr. Howard with an October 6, 1999 battery on a coh a b ita n t in violation of section 273.5. CT 185.

T h e information added an allegation that Mr. Howard had suffered a prior strike co n v iction ; specifically, a 1993 assault in violation of section 245(a)(2). CT 186. Mr. H o w a rd pled not guilty. CT 182.

T h e parties made their opening statements on January 17, 2002. CT 194. The s ta te rested its case on January 24, 2002. CT 204. The jury began deliberations on Ja n u a ry 31, 2002. CT 211. Before the jury returned its verdict, Mr. Howard waived his rig h t to a jury trial on the prior conviction allegation, and requested a court trial on that a lle g a tio n . CT 207. On February 4, 2002, the jury found Mr. Howard guilty as charged.

C itatio n s to "CT" denote the Clerk's Transcript prepared in connection with th e state court appeal, followed by the page reference. Citations to the Reporter's T r a n s c rip t on Appeal are denoted "RT." Petition for Writ of Habeas Corpus i and Memorandum In Support Thereof

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A f te r advisements, Mr. Howard waived jury trial on the prior conviction. RT 1514. The trial court found the prior true. RT 1517.

The court imposed sentence on March 29, 2002. The court imposed a 25 year-tolif e term for the count one murder, and then doubled it pursuant to California's "twostrikes law" based on the prior conviction which had been found true. CT 329. The court a d d e d a 25 year-to-life term for the firearm enhancement found true in connection with c o u n t one, and a 25 year-to-life term for the firearm use allegation found true in c o n n e ctio n with count two. CT 329. The court imposed an upper term of nine years on th e count two attempted murder, then doubled it under the two strikes law for a total of 18 ye a rs . CT 327. The court added a one-third the middle term of one year (doubled to two ye a rs ) for each of the charges in counts four and five. CT 327. The court stayed sentence o n the count three charge, and added a five year term for the serious felony prior c o n v ic tio n . CT 327. The total term imposed was 27 years in determinate sentencing tim e , plus four consecutive 25 year-to-life terms. CT 330.

M r. Howard timely filed a Notice of Appeal. CT 331. On February 20, 2003, the a p p e lla te court affirmed the convictions in their entirety, but found the state had presented in s u f f ic ie n t evidence of the prior conviction allegation. People v. Howard, 2003 WL 3 6 1 2 4 7 , *11-12 (2003). Accordingly, the case was remanded back to the Superior Court fo r re-sentencing. Mr. Howard filed a Petition for Review to the state supreme court w h ic h was denied on April 30, 2003. People v. Howard, S114565, Order of April 30, 2 0 0 3 , attached as Exhibit A.

O n remand, the trial court re-sentenced Mr. Howard without resort to the twostrikes law. This occurred on December 19, 2003. CT II 5. But because of serious errors Petition for Writ of Habeas Corpus and Memorandum In Support Thereof iii

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in the court's sentence, the appellate court ultimately vacated the sentence imposed at this h e a rin g in its entirety and remanded the case for re-sentencing yet again. People v. H o w a r d , 2005 WL 40034, *2 (2005). Mr. Howard filed a Petition for review to the state s u p re m e court which was denied on March 23, 2005. People v. Howard, S131464, Order o f March 23, 2005, attached as Exhibit B.

T h e trial court imposed sentence a third time on August 12, 2005. The court im p o s e d a 25 year-to-life term for the murder. RT III 14. The court added a 25 year-tolif e term for the firearm enhancement found true in connection with count one, and a 25 ye a r- to -lif e term for the firearm use allegation found true in connection with count two. RT III 14-15. The court imposed a consecutive upper term of nine years on the count two a tte m p te d murder, added consecutive one-third the middle terms of one year for each of th e charges in counts four and five and imposed a concurrent three-year term on the count th re e charge. RT III 15. The total term imposed was 11 years in determinate sentencing tim e , plus three consecutive 25 year-to-life terms. RT III 15-16.

M r. Howard timely filed a Notice of Appeal. 1 CT III 57. This time, the appellate c o u rt affirmed the sentence in an opinion dated October 11, 2006 and the state supreme c o u rt denied review on December 20, 2006. People v. Howard, 2006 WL 2912544 (2 0 0 6 ); People v. Howard, S147895, Order of December 20, 2006, attached as Exhibit C. The time within which to seek certiorari expired 90 days later, on March 19, 2007.

Mr. Howard immediately sought state habeas review. He filed a Petition for Writ o f Habeas Corpus in the Sacramento superior court on April 10, 2007. In re Howard, 0 7 F 0 3 6 8 8 , Petition for Writ of Habeas Corpus, attached as Exhibit D. This petition was d e n ie d on the merits by the Superior Court on May 9, 2007 in a four-page opinion. In re H o w a r d , 07F03688, Order of May 9, 2007, attached as Exhibit E.

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L e ss than a month later, on June 4, 2007, Mr. Howard filed a Petition for Writ of H a b e a s Corpus in the state court of appeal in case C055852. In re Howard, C055852, C a lifo rn ia Court of Appeals Docket Sheet, attached as Exhibit F. The court denied this p e titio n on July 5, 2007. In re Howard, C055852, Order of July 5, 2007, attached as E x h ib it G.

O n e month later, on August 6, 2007, Mr. Howard filed a habeas petition in the s ta te supreme court in case S155133. In re Howard, S155133, California Supreme Court D o c k e t Sheet, attached as Exhibit H. The state court denied this petition on February 13, 2 0 0 8 . In re Howard, S155133, Order of February 13, 2008, attached as Exhibit I.

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S T A T E M E N T OF FACTS

P e titio n e r Jelani Howard was charged with the February 19, 2000 murder of L a m o n te Hammond and the attempted murder of Chico Stokes. CT 184-185. At no point d i d Mr. Howard deny the shooting. Instead, as Mr. Howard explained at trial, this was a s e lf -d e f e n s e case; he fired at Hammond and Stokes only because he feared for his own lif e .

In order to rebut this defense, and over objection, the state introduced evidence of tw o uncharged acts of violence involving Mr. Howard, both occurring years earlier. As m o re fully discussed below, although both of these uncharged acts involved acts of v io len c e -- and so could prejudice a jury trying to assess Mr. Howard's self-defense claim h e re -- neither of these offenses involved a claim of self-defense at all.

M r. Howard's Testimony.

M r. Howard explained the events leading up to February 19, 2000. At the time, M r. Howard was living in San Francisco, California and attending San Francisco City C o lle g e . RT 976. He was dating Aretha Armstrong who lived in Sacramento, California. RT 976.

On February 18, 2000, after finishing math class, Mr. Howard took the bus to S a c ra m e n to to see Aretha. RT 976. Although Mr. Howard owned a car his grandmother h a d bought him, he was taking the bus because Aretha had crashed the car several weeks e a rlie r. RT 977. Aretha was going to use her tax return money to pay for the repairs. RT 9 8 0 . Aretha told Mr. Howard that the tax return check had arrived. RT 982. When he a rriv e d in Sacramento, they went to a bank to cash the check and then watched movies to g e th e r at Aretha's apartment. RT 984. Petition for Writ of Habeas Corpus and Memorandum In Support Thereof vi

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T h e next morning, Aretha asked if she could have some of the money back she had g iv e n Mr. Howard for the car repairs because it was her son's birthday and she wanted to b u y him something. RT 985. Mr. Howard explained to Aretha that his grandmother had a lre a d y paid to have the car fixed and he needed to reimburse her. RT 981. Aretha got u p s e t and walked to the corner market. RT 985. Mr. Howard decided he would give A re th a $200. RT 986.

While Aretha was gone, Mr. Howard spoke with some men standing outside her a p a rtm e n t. RT 985. They told him Aretha had been talking to another man who lived in th e same apartment complex. RT 985. Hearing this made Mr. Howard angry. RT 986.

When Aretha returned, Mr. Howard told her he wanted to talk and they walked to S o n n y's Market. RT 986. Aretha bought a bottle of Brandy. RT 987. On the walk back, w h e n Mr. Howard asked her about the man she was talking with at the apartment co m p lex, Aretha got angry and started to scream. RT 987. Although Mr. Howard a d m itte d it was not the right thing to do, he slapped Aretha several times. RT 987. Aretha then left and went to a friend's house. RT 988.2

A b o u t 11 p.m. that night, Mr. Howard went to find Aretha at her friend Kelly C la rk 's apartment. RT 993. He was planning on heading back to San Francisco and w a n ted to give Aretha the money she had asked for. RT 992-993. Outside the apartment, M r. Howard heard loud music. RT 1003. He knocked on the door. RT 1003. Kelly o p e n e d the door and before Mr. Howard could say anything, she told him that Aretha was n o t there. RT 1003. Believing that Aretha was inside, Mr. Howard asked where she was. RT 1003. Kelly said "whatever" and walked away from the open door. RT 1004. Mr.

T h e state also charged Mr. Howard with a February 19, 2000 battery of a c o -h a b ita n t. CT 184. In addition to the testimony Mr. Howard gave on this point, Aretha te s tif ie d that Mr. Howard assaulted her. RT 409-411. Petition for Writ of Habeas Corpus v ii and Memorandum In Support Thereof

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H o w a rd walked inside because he wanted to find Aretha, give her the money and then go. RT 1006.

Kelly's boyfriend Lamonte Hammond was inside the apartment sitting at the d in in g room table. RT 1004. As Mr. Howard came into the apartment, Mr. Hammond s a id "What's up? She's not here." RT 1004. Hammond seemed "confrontational" and w a s wearing the color blue which was a Crip color. RT 1005, 1012.3 Mr. Howard also s a w Larry Holliman or C-Crazy sitting in the livingroom. RT 1007. He was looking at M r. Howard in a menacing way or "mad-dogging" him. RT 1007-1008.

Hammond got up from the table and said "what's up motherfucker, she's not h e re ." RT 1011. His tone of voice told Mr. Howard "there was going to be a problem." RT 1011. Another man, Chico Stokes, was standing to Mr. Howard's right. RT 1012. Hammond walked towards Mr. Howard with Kelly standing between them, pushed Kelly a sid e and lifted his shirt, revealing a gun in his waistband. RT 1016. Believing that H a m m o n d was going to shoot, Mr. Howard grabbed the gun from him. RT 1017. Hammond asked what Mr. Howard was "gonna do" and moved towards him. RT 1017. Mr. Howard pulled the trigger but nothing happened, he pulled it several more times and th e gun went off. RT 1018.

Hammond fell to the floor. RT 1018. Mr. Howard did not shoot Hammond again a f te r he fell to the ground. RT 1082. Hammond died at the scene. RT 561.

Mr. Howard was going to leave when he saw Stokes coming towards him with a " b la n k " look on his face. RT 1018. Mr. Howard asked him what he was doing but

M r. Howard admitted that in the early 1990's he belonged to the Bloods g a n g or East Side Piru. RT 1041. At the time of trial, however, he had not been a gang m e m b e r for several years. RT 1041. Petition for Writ of Habeas Corpus v iii and Memorandum In Support Thereof

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S tok es kept walking towards him. RT 1019. Stokes grabbed Mr. Howard's arm and Mr. H o w a rd shot him once. RT 1019. Prosecution witness Orlando Johnson confirmed that S tok es grabbed Mr. Howard's arm before he was shot. RT 636. Sacramento sheriff's d e p u ty Will Bayles also confirmed that Stokes later told him in the hospital that he "tried to fight the guy who had the gun." RT 967.4

M r. Howard and Stokes continued to wrestle for the gun. RT 1019. It went off an o ther time. RT 1019. Because Stokes would not let go of the gun, Mr. Howard d ra g g e d Stokes towards the door. RT 1021. Stokes finally let go of the gun when he was h a lf -w a y in the apartment and half-way outside. RT 1022. Stokes was injured but alive. RT 746.

Mr. Howard could not "believe" what just happened. RT 1022. He did not feel lik e he had an opportunity to escape once he grabbed the gun from Hammond and H a m m o n d continued moving toward him. RT 1144. Because he did not consider himself a "killer," Mr. Howard then put the gun in his own mouth and pulled the trigger. RT 1 0 2 3 . The gun did not go off. RT 1023.

Ron Wilson confirmed this testimony. Wilson lived across the street from where th e shooting occurred. RT 1146. Wilson told police that after hearing several gunshots h e saw a man outside the complex place gun in his mouth and pull the trigger. RT 1146. The gun did not go off. RT 1146.

Mr. Howard did not wait at the scene for police because he was afraid police

O n re-direct, deputy Bayles, however, now claimed that Stokes struggled w ith Mr. Howard for the gun after Mr. Howard shot Stokes once. RT 971. His report c o n f irm e d his initial testimony that Stokes said he struggled for the gun before he was s h o t by Mr. Howard. RT 971-972. Petition for Writ of Habeas Corpus ix and Memorandum In Support Thereof

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w o u ld shoot him. RT 1024. Mr. Howard then called a friend to pick him up. RT 1024. On the on-ramp to Highway 50, Mr. Howard threw the gun out the window. RT 1032. The gun was later found there by police. RT 532-533. The state introduced no evidence s u g g e stin g Mr. Howard owned this gun. RT 532-538.5

T h e State's Witnesses To The Shooting.

K e lly Clark and Aretha Armstrong were friends and co-workers. RT 172-173. Around 9:30 p.m. on February 19, 2000, Aretha came to Kelly's apartment. RT 178. She h ad a bloody nose and lip and asked if she could stay because she was afraid of Mr. H o w a rd . RT 180. Aretha went upstairs to lie down and go to sleep. RT 184.

Kelly was dating Lamonte Hammond. RT 171. Hammond lived in San Jose and w o u ld come to Sacramento to visit Kelly on the weekends. RT 171. On that night, H a m m o n d arrived at Kelly's apartment around 10 p.m.. RT 171. He came with four o th e r men; Chico Stokes, Stokes's brother Larry Holliman Jr., Stokes's cousin Orlando J o h n s o n and someone who everyone only knew by the name of "Fats." RT 216, 218, 272, 4 6 2 , 468, 576.6

H am m o n d and his friends belonged to the Crips gang. RT 216, 463, 468, 574. In a d d itio n to Hammond and his friends, Sherry Clark, Kelly's sister was also there. RT 1 9 0 . They were drinking, playing cards, listening to music, playing video games and

O n rebuttal, Aretha Armstrong testified that about a week before the s h o o tin g Mr. Howard told her that he had borrowed a gun from his friend "Shawn." RT 1 2 3 8 . He also told her that he was returning it to Shawn. RT 1244. Aretha never saw the g u n nor did she know what type of gun it was. RT 1239. The state never called Shawn to s u p p o rt this testimony. Although not entirely clear from the record, "Fats" real name may have b e e n Edwin Beloney. RT 950-951. Petition for Writ of Habeas Corpus x and Memorandum In Support Thereof
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s m o k in g marijuana. RT 191. There was also methamphetamine in the back bedroom that H a m m o n d planned to sell that night. RT 215.

Sometime later, Mr. Howard knocked on the door and asked if Aretha was there. RT 192. Mr. Howard was calm and polite. RT 224. Kelly said no. RT 195. Hammond w a lk e d up behind Kelly and said "no she's not here." RT 225. Hammond then went back to playing cards at the diningroom table. RT 227. Mr. Howard then asked if he could c h e c k . RT 195. Kelly said no again. RT 195. Mr. Howard walked inside. RT 195. Kelly did not notice anything in his hands. RT 192.

Kelly asked what Mr. Howard was doing and put her hand on his chest. RT 195. Kelly was walking backward and Mr. Howard was walking forward. RT 196. Hammond th e n stood up from the dining room table walked towards Kelly and Mr. Howard. RT 2 0 2 . He said "what you gonna do shoot her or me?" RT 202. Hammond then pushed K e lly towards the front door. RT 203. Kelly heard a loud "pop" and when she looked b a c k she saw a red mark on Hammond's shirt. RT 203. Hammond grabbed his chest. RT 204. As Kelly ran to another apartment to call 911, she heard 4 more shots. RT 204.

Sherry, Kelly's sister, also saw the shooting. According to Sherry, moments b e f o re Hammond pushed Kelly towards the door, Mr. Howard pulled a gun from behind h is leg. RT 284, 287. He then shot Hammond once in the chest. RT 287. Hammond fell to the ground and Mr. Howard shot him two more times. RT 289. Between the second a n d third shots, Hammond said "please don't take my life." RT 289.7

A f te r Mr. Howard shot Hammond for the third time, Chico Stokes stood up from

P r o s e c u tio n witness Larry Holliman, Jr. testified that Mr. Howard shot H a m m o n d twice before Hammond fell to the ground. RT 488. Mr. Howard then shot H a m m o n d a third time while he was on the ground. RT 488. Petition for Writ of Habeas Corpus xi and Memorandum In Support Thereof

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th e table and said "you took my homeboy's life." RT 291. Mr. Howard then shot Stokes. RT 291. Stokes moved toward Mr. Howard and grabbed him, holding Mr. Howard's a rm s at his sides. RT 292, 316. The gun was pointing towards Stokes's legs. RT 316. S h e rr y ran and hid in the bathroom. RT 292. She heard two more gunshots. RT 293. She also heard Mr. Howard saying "don't ever run your mouth at me." RT 294-295.

Kelly testified that she did not see Hammond or any of his friends with a gun that n ig h t. RT 259. Nor had she ever seen Hammond with a gun before. RT 264. Prosecution witness Orlando Johnson testified that Mr. Howard was holding the gun by h is side when he entered the apartment. RT 645. Mr. Johnson admitted, however, that he w a s hoping to receive leniency from the state at an upcoming sentencing hearing on drug p o s s e ss io n charges in exchange for his testimony in Mr. Howard's case. RT 573, 635.

T h e Forensic Evidence Undercuts The State's Theory.

F o re n sic pathologist Gregory Reiber testified that Mr. Hammond died of multiple g u n sh o t wounds. RT 731-734. He had two gunshot wounds to his torso and one to his le f t buttock. RT 725, 731-734. Mr. Stokes had six gunshot wounds; two in the left side o f his chest, one in his back, one in his right hand, and one in each thigh. RT 746-748. Dr. Reiber was not sure, however, how many bullets caused those wounds. RT 751. It w a s possible that one bullet caused more than one wound. RT 751.

A s noted above, Sherry Clark and Larry Holliman testified that Mr. Howard shot H a m m o n d while he was on the ground. RT 289, 488. Dr. Reiber, however, testified that if Hammond had been shot on the ground, he would expect to see a bullet underneath or to the side of his body. RT 785-786. No such bullet was found. RT 700.

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P rio r Bad Acts Evidence.

Because Mr. Howard did not dispute that he fired the gun, the only issue for the ju ry to decide was Mr. Howard's mental state at the time of the shooting: did he have a h o n e st and reasonable belief in the need to defend himself when he shot Hammond and S to k e s? In making this determination, however, the jury was allowed to consider not only M r. Howard's testimony and that of the state's witnesses but it was also allowed to c o n s id e r Mr. Howard's involvement in 1992 and 1995 gang-related drive-by shootings. Thus, prior to the state's presentation of this evidence, the court instructed the jury:

"You are about to hear evidence that the defendant may have committed c rim e s other than that for which he is on trial. This evidence, if believed, . . . may be considered by you . . . if it tends to show the existence of the sp e c if ic intent which is a necessary element of the crimes charged in Counts O n e and Two, whether the defendant had an actual belief in the necessity to d e f e n d himself, or whether the defendant had an actual and reasonable b e lie f in the necessity to defend himself." RT 1154. With respect to the 1992 drive-by shooting, the state called Carnell Thompson to te s tif y. Thompson explained that he has known Mr. Howard for 10 years. RT 1156. On A u g u st 18, 1992, Thompson was driving in a car with Mr. Howard, Thompson's cousin K ev in Cottle, and Tyrone Dyson in Sacramento. RT 1158. Cottle was driving, Mr. H o w a rd was in the front passenger seat, and Dyson and himself were in the back seat. RT 1159. They were stopped at a stop light when another car pulled up beside them. RT 1 1 6 0 . A man in the other car flashed Crip gang signs at them. RT 1160. He then heard th re e gunshots fired from the car he was in. RT 1158, 1165. Thompson denied telling p o lic e that Mr. Howard was the only person in his car with a gun. RT 1166, 1180-1181.

Shortly after the shooting, Sacramento sheriff's deputy Cliff Lunetta stopped Mr. H o w ard 's car. Inside he found a .22 caliber gun and a box of .22 rounds. RT 1198. Mr. H o w a rd denied being the shooter. RT 1197. Petition for Writ of Habeas Corpus and Memorandum In Support Thereof

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A t trial, Mr. Howard again denied being the shooter. RT 1027. Instead, it was C o ttle . RT 1029. Cottle reached over Mr. Howard and shot out Mr. Howard's open w in d o w . RT 1029. Cottle then dropped the gun in Mr. Howard's lap. RT 1029. Shortly a f te r, police stopped their car and Mr. Howard was arrested. RT 1029. He was told that if he pled guilty to assault with a deadly weapon he would be allowed to go home. RT 1 0 2 9 . Because his mother was in the hospital and he wanted to go see her, he plead guilty a n d was allowed to go. RT 1029.

With respect to the 1995 gang-related drive-by shooting, the state called Carter H a yn e s to testify. RT 1258. Haynes explained that in September 1995 he had an a rg u m e n t with a man named Larry. RT 1259. During this argument, Larry told Haynes th a t he (Larry) was a member of the Crips gang. RT 1265. About two weeks after this a rg u m e n t, he was outside his home with his sister Karamel Haynes when a suburban d ro v e up. RT 1263. There were two men inside. RT 1268. He believed that Larry was d riv in g . RT 1266. The passenger pulled out a gun and fired several rounds. RT 12731 2 7 4 . One bullet hit his sister in the leg. RT 1274. The suburban then drove away. RT 1274.

Haynes called police. RT 1274. Haynes told police the driver's name was " L a r ry." RT 1299. He also told police that he saw the shooter and spoke with him just b e f o re the shooting. RT 1303.

Later that evening, police located a suburban at a nearby house matching the d e sc rip tio n given by Haynes. RT 1280. Sacramento sheriff's deputy Scott Swain te stif ie d that when they searched the residence they found two men inside; Lawrence L an ch aster and petitioner Jelani Howard. RT 1300. Lanchaster and Mr. Howard were p la c e d inside a patrol car and Haynes was brought for an identification. RT 1302. Haynes identified Lanchaster as the driver and Mr. Howard as the shooter. RT 1309. Petition for Writ of Habeas Corpus and Memorandum In Support Thereof x iv

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B o th were arrested but the charges were later dropped. RT 1031.

A t trial, Haynes was sure that Mr. Howard was not the shooter. RT 1287, 1293. He was sure the shooter was lighter skinned than Mr. Howard. RT 1287. Instead, he only id e n tif ie d Mr. Howard because he was the only other person with Lanchaster when the id e n tif ic a tio n took place. RT 1291.

Mr. Howard also testified that he was not the shooter. RT 1031. According to Mr. H o w a rd , the shooter was a family member and that is why he may have been m is id e n tif ie d by Haynes. RT 1031.8

A s noted above, Mr. Howard was also on trial for an October 6, 1999 b attery of a co-habitant and assault with a deadly weapon charges. CT 185. At trial, Mr. H o w a rd admitted these charges, conceding that after his girlfriend Sandra Smith told him s h e did not want to see him anymore, he came over to her apartment. RT 997. She was th e re with her brother Adolphus Smith. RT 977. Mr. Howard believed Mr. Smith had s to le n a radio from him; in a confrontation over the radio, he hit Mr. Smith with a bat and th e n pushed Ms. Smith into an entertainment center when she tried to intervene. RT 9971 0 0 0 . Ms. Smith confirmed she was hit and pushed into the entertainment center. RT 880. Petition for Writ of Habeas Corpus xv and Memorandum In Support Thereof

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ARGUMENT

T H E CURRENT PETITION IS TIMELY.

In tro d u c tio n And Statutory Background.

2 8 U.S.C. § 2244(d) provides a one year time period within which a state d e f en d a n t may seek habeas relief in federal court. Subdivision (d)(1)(A) provides that the o n e -ye a r period begins to run on "the date on which the judgment became final by the c o n c lu s io n of direct review or the expiration of the time for seeking such review . . . ." W h e n a case is remanded for resentencing, the judgement does not become final -- and th e one-year period does not begin to run -- until the new sentence is final. See Burton v. S t e w a r t, 549 U.S. 147, 156-157 (2007). A sentence is final on the date certiorari is d e n ie d or, if certiorari is not sought, the last date certiorari could have been sought. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). Once a case is final, and the one-year p e rio d has begun to run, 28 U.S.C. § 2244(d)(2) provides that the one-year period may be tolled for any period "during which a properly filed application for State post-conviction o r other collateral review with respect to the pertinent judgment or claim is pending . . . ."

Here, as discussed below, because the state appellate court remanded the case tw ic e for resentencing, the case did not become final until (and the one-year statute began to run on) March 19, 2007. Because Mr. Howard had a "properly filed application for S ta te post-conviction . . . review" pending from April 10, 2007 through February 13, 2 0 0 8 , his one year statute ran for 22 days (from March 19, 2007 until April 10, 2007) u n til it was tolled by operation of 28 U.S.C. § 2244(d)(2). The statute began to run again o n February 13, 2008 -- when Mr. Howard no longer had a state petition pending in state c o u rt. At that point, he had 343 days left in his one-year period (365 - 22 = 343). Accordingly, on February 13, 2008, Mr. Howard had 343 days within which to file his Petition for Writ of Habeas Corpus and Memorandum In Support Thereof xvi

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f e d e ra l habeas petition -- or until January 22, 2009. This petition is therefore timely.

T h e Case Was Final On Appeal On March 19, 2007.

O n January 14, 2002, the Sacramento County district attorney filed a six count in f o rm a tio n against defendant Jelani Howard. 1 CT 184.9 In addition to these six s u b s ta n tiv e charges, the information alleged that Mr. Howard had ben convicted of a s e rio u s prior felony. Mr. Howard was found guilty on all charges, as well as the prior f e lo n y allegation, and was sentenced on March 29, 2002. 2 CT 327-330.

M r. Howard timely filed a Notice of Appeal. 2 CT 331. As noted above, on F e b ru a ry 20, 2003, the state appellate court affirmed the convictions, but found there was in s u f f ic ie n t evidence of the prior conviction allegation. People v. Howard, 2003 WL 3 6 1 2 4 7 at * 11-12. Accordingly, the case was remanded back to the trial court for res e n te n c in g . Mr. Howard's subsequent Petition for Review to the state supreme court was d e n ie d on April 30, 2003. Exhibit A.

On remand, the trial court re-sentenced Mr. Howard without relying on the prior co n v iction allegation. This occurred on December 19, 2003. 1 CT II 5.1 0 Mr. Howard tim ely filed a Notice of Appeal. 1 CT II 9. On January 10, 2005, the state appellate court a g a in affirmed the conviction but found sentencing errors and remanded for resentencing. People v. Howard, 2005 WL 40034 at * 2. The state supreme court denied review on

C itatio n s to "CT" denote the Clerk's Transcript prepared in connection with th e state court appeal, followed by the page reference. Citations to the Reporter's T ra n sc rip t on Appeal are denoted "RT." Unless otherwise notes, all statutory references a re to the California Penal Code. "CT II" and "RT II" are references to the transcripts from the first re-sentencing in the case. Petition for Writ of Habeas Corpus x v ii and Memorandum In Support Thereof
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The trial court sentenced Mr. Howard for a third time on August 12, 2005. 1 CT III 1.1 1 The total term imposed in this third sentencing was 11 years in determinate s e n te n c in g time plus three consecutive 25 year-to-life terms. RT III 14-16.

Mr. Howard again filed a timely Notice of Appeal. CT III 57. The appellate court a d d e d one day additional credit for time served, but otherwise affirmed the conviction and s e n te n c e in an opinion dated October 11, 2006. People v. Howard, 2006 WL 2912544. The state supreme court denied review on December 20, 2006. Exhibit C. The time w ith in which to seek certiorari expired 90 days later, on March 19, 2007. This was the d a y the case became final on direct appeal and the one-year statute started to run. See B u r to n v. Stewart, 549 U.S. at 156-157.

B e c au s e Mr. Howard Tolled The One-Year Period From April 10, 2007 T h ro u g h February 13, 2008, His One-Year Period Expires On January 22, 2009.

As noted above, once the one-year period has begun to run, 28 U.S.C. § 2244(d)(2) p ro v id e s that this period may be tolled for any period "during which a properly filed a p p lic a tio n for State post-conviction or other collateral review with respect to the p e rtin e n t judgment or claim is pending . . . ." Here, Mr. Howard's one-year period began to run on March 19, 2007.

Acting in pro per, Mr. Howard properly filed a Petition for Writ of Habeas Corpus in the Sacramento superior court on April 10, 2007. Exhibit D. This petition was denied

"CT III" and "RT III" are references to the transcripts from the second res e n te n c in g in the case. Petition for Writ of Habeas Corpus x v iii and Memorandum In Support Thereof

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o n the merits by the Superior Court on May 9, 2007 in a four-page opinion. Exhibit E.

Less than a month later, on June 4, 2007, Mr. Howard -- still acting in pro per -f ile d a Petition for Writ of Habeas Corpus in the state court of appeal in case C055852. Exhibit F. The court denied this petition was on July 5, 2007. Exhibit G.

One month later, on August 6, 2007, Mr. Howard -- again still acting in pro per -f iled a habeas petition in the state supreme court in case S155133. Exhibit H. The state co u rt denied this petition on February 13, 2008. Exhibit I.

A c c o rd in g ly, while petitioner's one-year time period within which to seek federal re v ie w began running on March 19, 2007, it ran only for 22 days, until April 10, 2007. This is when petitioner began state habeas proceedings by properly filing an application f o r state post-conviction review with the state superior court. See 28 U.S.C. § 2244(d)(2). Petitioner had a state habeas petition pending from that date through February 13, 2008.

At that point (February 13, 2008), the one-year statute began running again. But p e titio n e r had 343 days left in his one-year period within which to file in federal court, or u n til January 22, 2009. This petition is, therefore, timely.

Petition for Writ of Habeas Corpus and Memorandum In Support Thereof

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