Fullmore v. McDonald

Filing 20

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 03/28/17 ORDERING the Clerk of the Court randomly assign a United States District Judge to this action. U.S. District Judge Kimberly J. Mueller randomly assigned to this action. Also, RECOMMENDING that petitioner's application for a writ of habeas corpus be denied. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID EDWARD FULLMORE,

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No. 2:14-cv-614-EFB P

Petitioner,
ORDER AND FINDINGS AND
RECOMMENDATIONS1

vs.
McDONALD, Warden,

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Respondent.

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Petitioner is a state prisoner proceeding with a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction entered against him on

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May 20, 2011, in the Sacramento County Superior Court (No. 09F06445) on three counts of

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second degree robbery and one count of false imprisonment, with findings that he personally used

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a firearm. Petitioner seeks federal habeas relief on the grounds that (1) the trial court’s failure to

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declare a mistrial deprived him of his right to a fair trial, and (2) the trial court erred by imposing

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a consecutive sentence on counts three and four.2 Upon careful consideration of the record and

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Respondent did not respond to the court’s order directing him to complete and return the
form indicating either his consent to jurisdiction of the magistrate judge or request for
reassignment to a district judge. Accordingly, the clerk will be directed to randomly assign this
case to a district judge.
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Petitioner raised this second claim in his August 29, 2014 motion to amend. ECF No.
16. Although the court granted the motion, petitioner never filed an amended petition. See ECF
Nos. 17, 19. In an abundance of caution, the court will address this sentencing claim in addition
to the mistrial claim that petitioner presented in his original petition (and also repeated in his
motion to amend). See ECF No. 1.
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the applicable law, the undersigned recommends that petitioner’s application for habeas corpus

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relief be denied.

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I.

Background
In its unpublished opinion affirming petitioner’s judgment of conviction, the California

Court of Appeal for the Third Appellate District provided the following factual summary:
FACTS AND PROCEEDINGS
Defendants and Antonio Howard spent the night of August 25, 2009, at the
apartment of defendant Fullmore’s sister, Nycquia Fullmore. At the time, Nycquia
and defendant Nesbit were dating. Howard is the half brother of three of
Nycquia’s children. Although not actually related, Fullmore and Howard were
close and referred to each other as “cousins.”
The apartment complex was located next to a liquor store and a Payday
Loans. A Chevron gas station was located across the street. A Round Table pizza
was also located nearby.
Around 11:00 a.m. the next morning, on August 26, Nycquia and Nesbit
showered together. After showering, Nycquia asked Nesbit to go to the liquor
store to get her some candy. Nesbit left alone but returned a few minutes later
because he needed more money. Nesbit and Fullmore then left the apartment
together. A short time later, Howard left the apartment to catch up to Nesbit and
Fullmore.
When he left the apartment, Nesbit was wearing a brown and white
checkered shirt and reddish jeans. Fullmore was wearing a white shirt and jeans.
All three men returned to the apartment about 10 minutes later; although
Nycquia testified her time estimates the day of the robberies were not absolutely
precise. Upon their return, defendants and Howard watched television. Later,
Nycquia walked outside to the mailboxes to collect the mail, which was usually
delivered to the apartment complex between 11:00 or 11:15 a.m. While outside
Nycquia saw several police officers questioning people in the apartment complex.
Nycquia called Nesbit, who was still inside the apartment, and told him about the
police. Nesbit seemed agitated over the phone. A few minutes later, the police
knocked on Nycquia’s apartment door to investigate two robberies that occurred at
the Payday Loans and Chevron earlier that day.
A. Count Two—Payday Loans Robbery
At approximately 11:20 a.m., M.W. was walking to work at the Round
Table near the apartment complex. Before going to work, M.W. stopped at the
Payday Loans to cash a money order.

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As M.W. approached the Payday Loans, he saw two men standing beside a
garbage can. The taller man called out, asking M.W. to come over to where they
were standing. M.W. declined. The taller man followed him into the Payday
Loans and stood looking over his shoulder before leaving. After cashing the
money order, M.W. walked out of the building. Once outside, the taller man
grabbed his arm while the shorter man pulled a silver gun with a black handle from
the right front pocket of his jeans, shoved it in M.W.’s ribs, and said, “If you
move, I’m going to shoot you.” The shorter man grabbed between $60 and $80
from M.W.’s pocket. The shorter man then walked away and the taller man
followed a few seconds later.

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M.W. called police to report the incident. He described the man with the
gun as a black man approximately five-foot-six or five-foot-seven, weighing about
150 to 160 pounds. He had short hair, hazel eyes, and was wearing a red shirt and
a white shirt and blue jeans. M.W. described the taller assailant as a black man
approximately five-foot-ten to six feet tall and weighing between 140 to 150
pounds. The taller man had a mustache, wore a brown shirt and had dread locks in
his hair, which M.W. later clarified meant braids. M.W. described the gun as a
silver and black .32-caliber revolver.

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While interviewing M.W. around 11:40 a.m. that morning, the officer
heard a dispatch report about a second robbery that had just occurred at the
Chevron. The suspects were two black males generally fitting M.W.’s description
of the two men who accosted him at the Payday Loans moments earlier.

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B. Count Three—Chevron Robbery

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Because Fullmore does not challenge his conviction for the count three
robbery of D.R. at the Chevron, and Nesbit challenges his conviction only to the
extent that insufficient evidence shows he aided and abetted Fullmore in the
robbery, the facts regarding count three are recounted in the light most favorable to
the judgment. (People v. Snow (2003) 30 Cal.4th 43, 66.)

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At approximately 11:30 a.m. that day, D.R. was at the Chevron gas station
across the street from the Payday Loans purchasing some items in the convenience
store. D.R. walked outside to her car where Fullmore approached her. While D.R.
sat in her car, Fullmore stood between the door and the car to prevent D.R. from
closing the door. Fullmore demanded D.R.’s money and pulled up his shirt to
reveal a silver gun in the right front pocket of his jeans.

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After rifling through her purse and locating only loose change, Fullmore
ordered D.R. into the convenience store to withdraw money from an ATM
machine. Nesbit followed them inside. Once inside, Fullmore stood beside D.R.
while she withdrew $200 and Nesbit talked to the cashier. Fullmore took the
money directly from the machine and left. Nesbit immediately followed Fullmore
out the door. Before leaving, either Fullmore or Nesbit told D.R. not to call police.

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When officers arrived a short time later, D.R. said she could not describe
the men very well because she did not look too closely at their faces since she was
scared. She did say, however, that the man with the gun was black, 18 to 20 years
old, five-foot-six to five-foot-ten with curly hair and that he was wearing a white
shirt and dark jeans. She said the gun was silver and that the man had light brown
eyes.
C. Surveillance Video
Surveillance video taken inside the Chevron store shows D.R. in the store
purchasing items at 11:38 a.m. The video also shows Fullmore, Nesbit, and
Howard in the store moments earlier. Both Fullmore and Howard are wearing
white shirts; Nesbit is wearing a brown and white checkered shirt.

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Five minutes later, the surveillance video shows D.R. back in the store at
the ATM machine with Fullmore. The surveillance footage also shows Nesbit
talking to the clerk while D.R. and Fullmore were at the ATM machine. Nesbit
exits the Chevron store almost immediately after Fullmore takes the money from
the ATM machine and leaves. The surveillance video does not show Howard in
the store at that time.

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There was no surveillance video showing the events at the Payday Loans.

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D. Police Investigation
Due to its proximity to both robberies, police searched the apartment
complex where Nycquia lived and where defendants and Howard had stayed the
previous night. The apartment manager directed officers to Nycquia’s apartment.
The police knocked and announced their presence at Nycquia’s apartment
but no one answered. Police stationed at the rear of the apartment saw what
appeared to be a black man’s hand frantically trying to open a back window
through the blinds.

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Nycquia finally walked over from the mailboxes where she had been
observing the police activity and gave officers a key to the apartment. She told
officers that Fullmore, Nesbit, and Howard were inside, but only Nesbit and
Howard came out once the door was opened. Fullmore was gone.

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When Howard left the apartment, he had long hair pulled back in a pony
tail. Howard was approximately six feet tall and weighed over 200 pounds.
Nesbit had a mustache, curly hair, and was wearing a blue basketball jersey.
Nesbit stood six feet tall and weighed about 195 pounds.
Police conducted separate field show ups for both victims with Nesbit and
Howard. After commenting the men looked like they had changed their hair or
clothes, M.W. identified Nesbit as the taller assailant and Howard as the gunman.
D.R. did not identify either man.
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Nesbit was arrested and gave a statement to police placing most of the
blame on Fullmore for the robberies. Police subsequently determined Howard was
not involved and he was released from custody.

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While searching the apartment, the police found a brown and white
checkered shirt. The police also found a silver and black .32 revolver loaded with
four live rounds, stuffed in a sock, and hidden in the bedroom closet under some
towels. Although she later denied it at trial, the day of the robberies Nycquia told
officers the gun was Fullmore’s and that he had put it in a sock on a shelf in the
closet.

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After being threatened with jail, Nycquia called Fullmore and told him to
come back to the apartment if he did nothing wrong. Fullmore did not return. He
was arrested two days later. At the time of his arrest, Fullmore was 5 feet 6 inches
tall and weighed 150 pounds.

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The next week a detective met with M.W. and showed him surveillance
video still frames from inside the Chevron store. M.W. recognized Nesbit in the
still frames as the taller man at the Payday Loans because of his brown and white
checkered shirt, which looked identical to the shirt police found in Nycquia’s
apartment. Although M.W. was sure about his previous identification of Nesbit,
he was unsure of his prior identification of Howard as the shorter gunman because
the gunman had short hair and Howard had long hair pulled in a pony tail at the
field show up. After the detective showed M.W. a photographic lineup containing
Fullmore’s picture, M.W. identified Fullmore as the man with the gun. The
detective did not show M.W. a photographic lineup containing Nesbit’s picture.

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The detective also showed M.W. pictures of the gun recovered from
Nycquia’s apartment. M.W. said it looked like the same gun used in the robbery.

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The next day, the detective met with D.R. She, too, identified Nesbit from
still frames taken from the surveillance video of the Chevron robbery. Like with
M.W., the detective showed D.R. the same photographic lineup of Fullmore. D.R.
identified Fullmore and said she thought he was the man with the gun at the
Chevron station. The detective also showed D.R. a photographic lineup containing
a picture of Nesbit. D.R. identified Nesbit as the man with Fullmore during the
robbery, although she could not say whether Nesbit did or said anything to her.

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E. Trial
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Defendants were tried jointly in 2011, nearly two years after their arrest.
Based on Nesbit’s statements to police implicating Fullmore in the robberies,
Fullmore’s counsel moved for separate juries to avoid any Sixth Amendment
confrontation issues. After the parties agreed Nesbit’s statements would not be
introduced, the court denied the motion.

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During trial M.W. testified it had been a long time since the robbery and he
was not sure if the defendants were the perpetrators. Defendants’ appearance,
especially their hairstyles, had changed from when they were arrested. Although
he originally testified Fullmore looked like the shorter man with the gun, upon
closer inspection M.W. said he could not tell if Fullmore was the gunman. M.W.
also testified that he did not see the taller assailant in court.

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D.R. testified that Fullmore was the man with the gun at the Chevron
station. She said two other men were with Fullmore outside, one of whom she
identified as Nesbit. She also testified that Nesbit walked back into the Chevron
with her and Fullmore, and then walked outside with Fullmore after he took the
money from the ATM machine.

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Both M.W. and D.R. testified that the gun recovered from Nycquia’s
apartment looked like the gun used in the robberies. The parties stipulated that no
name was registered to the gun with the Department of Justice, no latent
fingerprints were found on the gun, and that defendants were excluded from being
contributors to a mixture of DNA found on the gun from three different people.
The crime lab considered the inconclusive DNA mixture not suitable for either
inclusion or exclusion of specific contributors.

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The jury also heard several phone conversations between Fullmore and
Nycquia while Fullmore was in jail awaiting trial. During one call, Fullmore said
if there was video he was “going to be fucked.” In another, Fullmore apologized
to Nycquia for leaving the apartment without first grabbing that “motherfucker,”
which Nycquia understood to mean the gun and marijuana. In a third call,
Fullmore and Nycquia joked about jumping out of the apartment’s back window.
Nycquia admitted she was aware her brother climbed out the back window of the
apartment the day of the robberies. In another call to an unknown acquaintance
made two days after being arrested, Fullmore said, “I don’t know, I think
somebody told on a nigga, like my cousin, because it was three of us. You know
what I’m saying? And this motherfucker not even in jail.”

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The jury convicted defendants on all counts and found all enhancement
allegations true. Defendants timely appealed.

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Cal. Court of Appeal Opinion (“ECF No. 12-1”) at 2-9.

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On November 13, 2013, the California Court of Appeal, Third Appellate District, affirmed

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petitioner’s judgment of conviction in a reasoned opinion. ECF No. 12-1. On February 19, 2014,

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the California Supreme Court summarily denied review. ECF No. 13, Lodged Document

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(“Lodged Doc.”) 6.

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II.

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Standards of Review Applicable to Habeas Corpus Claims
An application for a writ of habeas corpus by a person in custody under a judgment of a

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state court can be granted only for violations of the Constitution or laws of the United States. 28

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U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

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application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010);

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Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir.

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2000).

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Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
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 (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 unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

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holdings of the United States Supreme Court at the time of the last reasoned state court decision.

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Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S.

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___, 132 S.Ct. 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v.

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Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “may be persuasive in determining

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what law is clearly established and whether a state court applied that law unreasonably.” Stanley,

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633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit

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precedent may not be “used to refine or sharpen a general principle of Supreme Court

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jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall

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v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155

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(2012) (per curiam)). Nor may it be used to “determine whether a particular rule of law is so

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widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court,
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be accepted as correct.” Id. Further, where courts of appeals have diverged in their treatment of

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an issue, it cannot be said that there is “clearly established Federal law” governing that issue.

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Carey v. Musladin, 549 U.S. 70, 77 (2006).

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A state court decision is “contrary to” clearly established federal law if it applies a rule

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contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

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precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).

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Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the

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writ if the state court identifies the correct governing legal principle from the Supreme Court’s

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decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 3 Lockyer v.

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Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002

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(9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that

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court concludes in its independent judgment that the relevant state-court decision applied clearly

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established federal law erroneously or incorrectly. Rather, that application must also be

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unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473

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(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent

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review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”).

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“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as

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‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

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Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S.

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652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal

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court, a state prisoner must show that the state court’s ruling on the claim being presented in

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federal court was so lacking in justification that there was an error well understood and

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comprehended in existing law beyond any possibility for fairminded disagreement.” Richter,131

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S. Ct. at 786-87.

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Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
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If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

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court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

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527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

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(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §

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2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering

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de novo the constitutional issues raised.”).

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The court looks to the last reasoned state court decision as the basis for the state court

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judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If

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the last reasoned state court decision adopts or substantially incorporates the reasoning from a

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previous state court decision, this court may consider both decisions to ascertain the reasoning of

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the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When

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a federal claim has been presented to a state court and the state court has denied relief, it may be

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presumed that the state court adjudicated the claim on the merits in the absence of any indication

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or state-law procedural principles to the contrary.” Richter, 131 S. Ct. at 784-85. This

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presumption may be overcome by a showing “there is reason to think some other explanation for

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the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797,

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803 (1991)). Similarly, when a state court decision on a petitioner’s claims rejects some claims

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but does not expressly address a federal claim, a federal habeas court must presume, subject to

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rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___,

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___, 133 S.Ct. 1088, 1091 (2013).

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Where the state court reaches a decision on the merits but provides no reasoning to

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support its conclusion, a federal habeas court independently reviews the record to determine

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whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

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Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

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review of the constitutional issue, but rather, the only method by which we can determine whether

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a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no

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reasoned decision is available, the habeas petitioner still has the burden of “showing there was no

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reasonable basis for the state court to deny relief.” Richter, 131 S. Ct. at 784.
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A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

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Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze

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just what the state court did when it issued a summary denial, the federal court must review the

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state court record to determine whether there was any “reasonable basis for the state court to deny

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relief.” Richter, 131 S. Ct. at 784. This court “must determine what arguments or theories ...

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could have supported, the state court’s decision; and then it must ask whether it is possible

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fairminded jurists could disagree that those arguments or theories are inconsistent with the

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holding in a prior decision of [the Supreme] Court.” Id. at 786. The petitioner bears “the burden

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to demonstrate that ‘there was no reasonable basis for the state court to deny relief.’” Walker v.

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Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S. Ct. at 784).

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When it is clear, however, that a state court has not reached the merits of a petitioner’s

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claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

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habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462

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F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

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III.

Petitioner’s Claims
A. Trial Court’s Failure to Declare a Mistrial
Petitioner claims that the trial court violated his right to a fair trial when it denied his

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motion for a mistrial after a detective inadvertently testified that Nesbit admitted to officers to

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being with petitioner at Payday Loans. ECF No. 1 at 4. Although it acknowledged the parties’

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previous understanding that Nesbit’s statements to police would not be introduced in evidence,

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the trial court concluded that the detective’s “errant statement at the conclusion near the end of

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the trial” did not render the trial fundamentally unfair. ECF No. 12-1 at 9. The trial court noted

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that evidence of defendants’ presence together the day of the robberies near the location of the

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Payday Loans had already been admitted, and that the jury could decide whether defendants were

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together or not at that location. Id.

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On direct appeal, the appellate court rejected petitioner’s argument that the trial court had

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abused its discretion in denying the mistrial motion. Id. at 10-14. The appellate court determined

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that the detective’s statement that Nesbit confessed to being with petitioner at the Payday Loans
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was not “incurably prejudicial” because there was already uncontroverted evidence showing that

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petitioner and Nesbit were near the Payday Loans on the day of the robbery. As the court

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explained:

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Fullmore and Nesbit stayed the previous night at Nycquia’s apartment, which was
located next to the Payday Loans. The day of the robbery Fullmore and Nesbit left
Nycquia’s apartment to go to the liquor store to buy her candy sometime after
11:00 a.m. The liquor store was located next door to the Payday Loans. M.W.
was robbed around 11:20 a.m. The surveillance video from the Chevron station—
located directly across the street from the Payday Loans—also shows Fullmore
and Nesbit together at approximately 11:37 a.m. In closing arguments, Fullmore’s
counsel even conceded Fullmore was in the area that day.

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Based on the state of the evidence, the trial court was amply justified in
finding the detective’s statement that Nesbit confessed to being with Fullmore at
the Payday Loans was not incurably prejudicial. The trial court acted within its
discretion in denying the motion for a mistrial.

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Id. at 10-11. The appellate court continued, essentially finding that any error in this regard was

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harmless:

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Given the overwhelming evidence against defendants, we are satisfied the jury
would have convicted them of robbing M.W. even in the absence of the detective’s
cumulative testimony regarding Nesbit’s out-of-court statement that he and
Fullmore were at the Payday Loans.
The evidence at trial revealed the following: Based on M.W.’s eyewitness
account of the robbery, the shorter man with the gun was black, five-foot-six or
five-foot-seven, weighed 150 to 160 pounds and had short hair and hazel eyes.
Fullmore matched that description. While it is true M.W. originally identified
Howard as the gunman, he later expressed doubt about that identification because
Howard had a long ponytail at the field show up and the gunman had short hair.
At six feet tall and over 200 hundred pounds, Howard was also physically much
larger than the gunman. When shown a photographic lineup of Fullmore, M.W.
immediately identified him as the gunman.
Based on his observation of the crime, M.W. also described the taller man
who grabbed him as black, approximately five-foot-ten to six feet tall with a
mustache, short dreads or braids, and wearing a brown shirt. When he was
arrested, Nesbit was six feet tall with curly hair and a mustache. The Chevron
surveillance video shows Nesbit wearing a brown and white checkered shirt that
morning, which police later found in Nycquia’s apartment. M.W. also identified
Nesbit at the field show up as the taller assailant who grabbed him outside the
Payday Loans, and identified him again after seeing Nesbit in the Chevron video
wearing the brown and white shirt.

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That M.W. did not definitively identify Fullmore or Nesbit during trial is
not surprising. Trial occurred nearly two years after M.W. was robbed, and the
defendants had changed their appearance, especially their hairstyles. It is more
revealing that M.W. identified Nesbit in the field show up the day of the robbery,
confirmed his previous identification of Nesbit a week later after seeing video
surveillance stills from the Chevron, and immediately picked Fullmore out of a
photographic lineup after he was arrested.

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M.W. described the gun the man pulled from his right front pocket of his
jeans as a silver .32 revolver with a black handle. Similarly, Fullmore lifted his
shirt to reveal a silver gun in the right front pocket of his jeans when robbing D.R.
at the Chevron. A silver .32 revolver with a black handle was found hidden in a
sock in Nycquia’s apartment—the same apartment where Fullmore and Nesbit had
been staying. And, Nycquia told officers the gun was Fullmore’s. Both D.R. and
M.W. also testified the gun found in Nycquia’s apartment resembled the gun used
in each of their respective robberies. Based on this evidence the jury reasonably
could have concluded Fullmore used the gun found in Nycquia’s apartment to rob
M.W. and D.R.
The fact that Fullmore’s fingerprints or DNA were not found on the gun is
not particularly meaningful. As the parties stipulated, it is only by chance that
someone leaves a latent fingerprint, and whether a person leaves DNA on an
object they handle depends on many factors. Also, the DNA mixture was not
appropriate for including or excluding possible contributors.
Defendants’ conduct when police searched the apartment complex also
shows a consciousness of wrongdoing which the jury could have inferred against
defendants. Nesbit seemed agitated after Nycquia called and told him police were
outside. In an apparent attempt to alter his appearance, Nesbit changed his brown
and white checkered shirt to a blue basketball jersey. When police arrived at
Nycquia’s apartment a few minutes after Nycquia called Nesbit, Fullmore was
gone. He had climbed out the back window and fled. Fullmore did not return
when Nycquia called and told him to come back if he did nothing wrong.

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Deliberately altering one’s appearance gives rise to a consciousness of guilt
inference. (People v. Cunningham (2001) 25 Cal.4th 926, 1001.) So, too, does
fleeing from the scene or attempting to hide or suppress evidence and the jury was
so instructed. (People v. Bradford (1997) 14 Cal.4th 1005, 1055 [consciousness of
guilt may be inferred where defendant departs scene to avoid being observed or
arrested]; People v. Watkins (2012) 55 Cal.4th 999, 1027 [hiding a weapon
evidences a consciousness of guilt].)
Fullmore’s recorded jail phone calls also constitute further evidence
supporting defendants’ convictions. Fullmore told Nycquia he should have
grabbed the gun before he left, and joked about climbing out the back window of
the apartment when the police arrived. Fullmore also said his “cousin”—
Howard—likely snitched because three of them were involved and only Fullmore
and Nesbit were in jail, implying he and Nesbit had in fact committed the
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robberies. And most telling, Fullmore admitted that if there was surveillance
video that he was “going to be fucked.”
Relying on People v. Navarrete (2010) 181 Cal.App.4th 828 (Navarrete),
defendants argue that improperly admitted testimony alluding to a defendant’s purported
confession requires a mistrial. That case is distinguishable, however. There a police
officer deliberately referred to the defendant’s suppressed statement implying the
defendant had already confessed to the crime. (Id. at pp. 830–831.) The court struck the
testimony and admonished the jury to disregard it entirely, but denied defendant’s motion
for mistrial. (Id. at pp. 831–832.) The appellate court reversed holding the curative
instruction could not undo the damage inflicted by referring to the suppressed statement.
(Id. at p. 834.) In reaching its decision, the appellate court emphasized the case against
the defendant was “not overwhelming” and that the detective had deliberately disobeyed
the court’s order precisely to prejudice the jury against the defendant. (Id. at p. 834, see
also id. at p. 836.)
Here, by contrast, the detective’s testimony referred to Nesbit admitting he was
near the Payday Loans with Fullmore, and not that he confessed to robbing M.W. The
direct and circumstantial evidence of defendants’ guilt, moreover, was substantial. Unlike
in Navarrete, an admittedly “less than airtight case” (Navarrete, supra, 181 Cal.App.4th at
p. 834), the overwhelming weight of the evidence shows that Fullmore and Nesbit robbed
M.W. at the Payday Loans. And nothing in the record suggests the detective purposefully
testified to Nesbit’s statement to prejudice the jury. As the trial court noted, the officer
was merely responding to an open ended question from Nesbit’s counsel as to why he did
not show M.W. a photographic lineup of Nesbit.
Even without the detective’s testimony that Nesbit confessed to being with
Fullmore at the Payday Loans, it is clear beyond a reasonable doubt the jury would
have convicted defendants of the count two robbery. Defendants, therefore,
suffered no prejudice from a single, inadvertent reference to Nesbit’s statement at
the conclusion of trial. The statement was merely cumulative of other properly
admitted evidence.
ECF No. 12-1 at 11-14.
Petitioner has not shown he is entitled to federal habeas relief on this claim. The

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erroneous admission of evidence does not provide a basis for federal habeas relief unless it

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rendered the trial fundamentally unfair in violation of due process. Holley v. Yarborough, 568

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F.3d 1091, 1101 (9th Cir. 2009). Evidence violates due process only if “there are no permissible

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inferences the jury may draw from the evidence.” Jammal v. Van de Kamp, 926 F.2d 918, 920

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(9th Cir. 1991). A writ of habeas corpus will be granted for an erroneous admission of evidence

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“only where the ‘testimony is almost entirely unreliable and . . . the factfinder and the adversary

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system will not be competent to uncover, recognize, and take due account of its shortcomings.’”
13

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Mancuso v. Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S.

2

880, 899 (1983)). Even then, as the Ninth Circuit has observed:

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The Supreme Court has made very few rulings regarding the admission of
evidence as a violation of due process. Although the Court has been clear that a
writ should be issued when constitutional errors have rendered the trial
fundamentally unfair (citation omitted), it has not yet made a clear ruling that
admission of irrelevant or overtly prejudicial evidence constitutes a due process
violation sufficient to warrant issuance of the writ.

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Holley, 568 F.3d at 1101. Therefore, “under AEDPA, even clearly erroneous admissions of

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evidence that render a trial fundamentally unfair may not permit the grant of federal habeas

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corpus relief if not forbidden by ‘clearly established Federal law,’ as laid out by the Supreme

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Court.” Id. Under these standards, the state appellate court’s rejection of petitioner’s claim here

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does not support the granting of federal habeas relief under AEDPA because the trial court’s

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admission of the detective’s testimony did not violate any principle of clearly established federal

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law. Id.

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Moreover, “[h]abeas relief is usually warranted only if the alleged constitutional errors

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had a ‘substantial and injurious effect or influence in determining the jury’s verdict.’” Jackson v.

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Brown, 513 F.3d 1057, 1069-1070 (9th Cir. 2008) (quoting Brecht v. Abrahamson, 507 U.S. 619,

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637 (1993)). The state appellate court determined, in essence, that any error in admitting the

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detective’s testimony was harmless. This court agrees. As the state appellate court explained, the

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detective’s statement was cumulative of other evidence that Nesbit was with petitioner at the

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Payday Loans around the time the robbery was committed, and there was other significant and

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substantial evidence of petitioner’s guilt. In light of these circumstances, the detective’s

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testimony would not have had a “substantial and injurious effect” on the verdict in this case. See

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Brecht, 507 U.S. at 623. Likewise, to the extent petitioner is claiming that admission of the

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detective’s testimony violated his Sixth Amendment right to confront witnesses, see ECF No. 16

25

at 6-8, he is not entitled to relief, as Confrontation Clause violations are also subject to a harmless

26

error analysis. See Whelchel v. Washington, 232 F.3d 1197, 1205-06 (9th Cir. 2000).

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Petitioner has failed to demonstrate that the decision of the California Court of Appeal
rejecting his argument that the trial court violated his right to a fair trial when it denied his motion
14

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for a mistrial was contrary to or an unreasonable application of federal law. Accordingly,

2

petitioner is not entitled to federal habeas relief with respect to this claim.

3

B. Trial Court’s Imposition of Consecutive Sentence

4

Petitioner also claims the trial court erred by imposing a consecutive sentence on counts

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three and four “because section[s] 236 & 654 preclude multiple punishment for a robbery when

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both are based on the same act or course of conduct.” ECF No. 16 at 3. He claims this is a

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violation of his Eighth and Fourteenth Amendment rights. Id.

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On direct appeal, petitioner challenged the trial court’s imposition of consecutive terms.
The state appellate court reasoned as follows:
Section 654 (Fullmore)
The jury convicted Fullmore of falsely imprisoning D.R. in count four.
Fullmore contends the trial court erred in refusing to stay his count four sentence
under section 654. According to Fullmore, he harbored the single objective of
taking D.R.’s money; forcing D.R. back into the Chevron station to withdraw
money from the ATM machine after he obtained only loose change at her car was
merely part of an indivisible course of conduct to deprive D.R. of her personal
property as part of the robbery charged in count three. Although the probation
report also recommended staying the sentence under section 654, the trial court
disagreed, concluding “there was an intent to rob and then a separate intent was
formed to actually force her from the vehicle into the Mini Mart.” We conclude
substantial evidence supports the trial court’s finding and reject Fullmore’s
contention.
Section 654 provides in pertinent part: “(a) An act or omission that is
punishable in different ways by different provisions of law shall be punished under
the provision that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one provision.” The
statute does not prohibit multiple convictions for the same conduct, only multiple
punishments. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) “In such a
case, the proper procedure is to stay execution of sentence on one of the offenses.”
(Ibid.)
In any section 654 inquiry, the court must initially ascertain the defendant's
objective and intent. (People v. Porter (1987) 194 Cal.App.3d 34, 38 (Porter).) “If
he entertained multiple criminal objectives which were independent of and not
merely incidental to each other, he may be punished for independent violations
committed in pursuit of each objective even though the violations shared common
acts or were parts of an otherwise indivisible course of conduct.” (Ibid.)
“Whether the defendant maintained multiple criminal objectives is determined
from all the circumstances and is primarily a question of fact for the trial court,
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whose finding will be upheld on appeal if there is any substantial evidence to
support it.” (Ibid.)
The record in this case supports the trial court’s finding that the robbery of
D.R. and her false imprisonment involved multiple objectives even though they
may have shared common acts or were otherwise parts of an indivisible course of
conduct. A reasonable inference from the record is that Fullmore initially planned
only to rob D.R. of the contents of her purse while seated in her car, but thereafter
came up with a new idea: falsely imprisoning D.R. by forcing her from her car and
back inside the Chevron convenience store to compel her to withdraw money from
the ATM machine. Similar conduct has been found separately punishable under
section 654. (See Porter, supra, 194 Cal.App.3d at p. 38 [defendant properly
convicted and sentenced for robbery of victim's wallet and of kidnapping for the
purpose of a robbery involving the compelled withdrawal of funds from an
automated teller machine].)
The decision in Porter is instructive. There, the victim was getting into his
car when the appellant jumped into the vehicle while brandishing a knife. (Porter,
supra, 194 Cal.App.3d at p. 36.) The appellant’s accomplice got in and rifled
th[r]ough the victim’s wallet. (Ibid.) After finding less than $10, the appellant
ordered the victim to drive to a bank to withdraw additional money from an ATM
machine, which was unsuccessful. (Ibid.) The appellant was ultimately convicted
of robbing the victim and kidnapping for the purpose of robbery. (Ibid.) The court
upheld his punishments for both crimes, rejecting the appellant’s argument that
section 654 precluded double punishment since appellant had a single objective of
robbing the victim. (Id. at pp. 37-38.) “What began as an ordinary robbery turned
into something new and qualitatively very different. No longer satisfied with
simply taking the contents of the victim’s wallet, appellant decided to forcibly
compel the victim to drive numerous city blocks to a bank where, only with the
victim’s compelled assistance, could appellant achieve a greater reward.” (Id. at
pp. 38-39.)

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This is precisely what occurred here. No longer satisfied with simply
taking the coins he found in her purse, Fullmore decided to forcibly compel D.R.
to exit her car and walk back into the Chevron convenience store where, only with
her assistance in withdrawing money from the ATM machine, did Fullmore
achieve a greater reward. Falsely imprisoning D.R. to compel her to do so was
qualitatively different than merely taking the money from her purse while she was
seated in her car.
That Fullmore did not force D.R. to drive several city blocks to a bank like
the victim in Porter does not render Fullmore’s false imprisonment conduct
incidental to the robbery as he argues. Since Fullmore had previously been inside
the store, a reasonable inference exists that he was aware of the ATM located
inside and thus there was no need to force D.R. to drive to a bank. Yet like in
Porter, the secondary plan of forcing her to withdraw money from the ATM,
hatched after obtaining an initially disappointing haul, remains the same.

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The trial court did not violate section 654 by imposing consecutive
sentences on Fullmore for the robbery and false imprisonment of D.R.

2
3

ECF No. 12-1 at 15-17.

4

Although petitioner includes a citation to the Eighth and Fourteenth Amendments, his

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claim for relief essentially involves the interpretation of state sentencing law. A habeas petitioner

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may not “transform a state-law issue into a federal one” merely by asserting a violation of the

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federal constitution. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997). Rather, as set forth

8

above, petitioner must show that the decision of the California Court of Appeal somehow

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“violated the Constitution, laws, or treaties of the United States.” Little v. Crawford, 449 F.3d

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1075, 1083 (9th Cir. 2006) (quoting Estelle, 502 U.S. at 68). Petitioner’s claim, which essentially

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involves a challenge to state sentencing laws, is not cognizable in this federal habeas action.

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Even if the claim were cognizable, petitioner has failed to show that his consecutive

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sentences for the robbery and false imprisonment of D.R. violate the federal constitution. “[I]t is

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not the province of a federal habeas court to reexamine state court determinations on state law

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questions.” Wilson v. Corcoran, 562 U.S.1, 5 (2010) (quoting Estelle, 502 U.S. at 67). So long

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as a sentence imposed by a state court “is not based on any proscribed federal grounds such as

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being cruel and unusual, racially or ethnically motivated, or enhanced by indigency, the penalties

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for violation of state statutes are matters of state concern.” Makal v. State of Arizona, 544 F.2d

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1030, 1035 (9th Cir. 1976). See also Miller v. Vasquez, 868 F.2d 1116, 1118–19 (9th Cir. 1989)

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(issue concerning only state sentencing law not suitable for federal habeas review). Thus,

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“[a]bsent a showing of fundamental unfairness, a state court’s misapplication of its own

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sentencing laws does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th

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Cir. 1994). Here, petitioner has not shown that the state court’s imposition of consecutive

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sentences was fundamentally unfair.

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In addition, the United States Supreme Court has held that the Eighth Amendment

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includes a “narrow proportionality principle” that applies to terms of imprisonment. See

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Harmelin v. Michigan, 501 U.S. 957, 996 (1991) (Kennedy, J., concurring). See also Taylor v.

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Lewis, 460 F.3d 1093, 1097 (9th Cir. 2006). However, successful challenges in federal court to

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the proportionality of particular sentences are “exceedingly rare.” Solem v. Helm, 463 U.S. 277,

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289-90 (1983). See also Ramirez v. Castro, 365 F.3d 755, 775 (9th Cir. 2004). “The Eighth

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Amendment does not require strict proportionality between crime and sentence. Rather, it forbids

8

only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin, 501 U.S. at

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1001 (Kennedy, J., concurring) (citing Solem, 463 U.S. at 288, 303). In Lockyer v. Andrade, the

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United States Supreme Court held that it was not an unreasonable application of clearly

11

established federal law for the California Court of Appeal to affirm a “Three Strikes” sentence of

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two consecutive 25 year-to-life imprisonment terms for a petty theft with a prior conviction

13

involving theft of $150.00 worth of videotapes. Andrade, 538 U.S. at 75. The Supreme Court

14

has also held that a “Three Strikes” sentence of 25 years-to-life in prison imposed pursuant to a

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grand theft conviction involving the theft of three golf clubs from a pro shop was not grossly

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disproportionate and did not violate the Eighth Amendment. Ewing v. California, 538 U.S. 11,

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29 (2003).

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In this case, petitioner was sentenced as a second-striker to thirty-seven years in state

19

prison after a jury found him guilty of three counts of second degree robbery and one count of

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false imprisonment, with the personal use of a firearm. ECF No. 12-1 at 1-2. Petitioner has

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failed to show that this sentence falls within the type of “exceedingly rare” circumstance that

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would justify habeas relief under the Eighth Amendment.

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Petitioner has failed to demonstrate that his sentence violates the Eighth Amendment

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proscription against cruel and unusual punishment, or that it is fundamentally unfair, in violation

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of the Fourteenth Amendment. Accordingly, petitioner is not entitled to relief on his claims under

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the Eighth and Fourteenth Amendments.

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IV.

Conclusion
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a

United States District Judge to this action.
Further, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of
habeas corpus be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. Failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

13

Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991). In his objections petitioner may address whether a certificate of appealability should issue

15

in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section

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2254 Cases (the district court must issue or deny a certificate of appealability when it enters a

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final order adverse to the applicant).

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DATED: March 28, 2017.

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