Locke v. Paramo

Filing 13

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus, filed by Marvin K. Locke. It is ordered that no later than 8/23/2017, any party may file written objections with the Court and serve a copy on all parties. It is further ordered that any reply to the objections shall be served and filed not later than8/31/2017. Signed by Magistrate Judge Jan M. Adler on 8/4/2017.(All non-registered users served via U.S. Mail Service)(dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARVIN K. LOCKE,

Case No.: 17cv0453-JLS(JMA)
Petitioner,

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v.

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DANIEL PARAMO, Warden,

REPORT & RECOMMENDATION
RE: DENIAL OF PETITION FOR
WRIT OF HABEAS CORPUS

Respondent.

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I.

INTRODUCTION
Petitioner Marvin K. Locke (“Petitioner”), a state prisoner proceeding pro

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se, has filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28

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U.S.C. § 2254. Petitioner was convicted by jury in San Diego Superior Court

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case number SCD160776 for second degree murder, Cal. Penal Code § 187(a),

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and assault with a firearm, Cal. Penal Code § 245(a)(2). Petitioner contends his

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conviction for second-degree murder is invalid under Johnson v. United States,

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135 S. Ct. 2551 (2015).

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The Court has considered the Petition and Memorandum of Points and

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Authorities in support thereof, Respondent’s Answer and Memorandum of Points

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and Authorities, Petitioner’s Traverse, and all the supporting documents

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submitted by the parties. Based upon the documents and evidence presented in
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this case, and for the reasons set forth below, the Court recommends the Petition

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be DENIED.

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II.

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FACTUAL BACKGROUND
The following statement of facts is taken from the California Court of

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Appeal opinion, People v. Marvin Locke, No. D042063, slip op. (Cal. Ct. App.

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April 20, 2004). (Lodgment No. 7.) This Court gives deference to state court

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findings of fact and presumes them to be correct. Tilcock v. Budge, 538 F.2d

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1138, 1141 (9th Cir. 2008). Petitioner may rebut the presumption of correctness,

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but only by clear and convincing evidence. Id.; see also 28 U.S.C. § 2254(e)(1).

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The facts as found by the state appellate court are as follows:
A. The People’s Case
On May 15, 1999, between 7:00 p.m. and 7:30 p.m.,
Sheila Jones dropped off her 22-year-old son Fred Jones
(Fred), the victim, at Seaport Village in San Diego. She
testified she had never seen him in possession of a gun
or any other weapon, and he was not affiliated with any
gangs.
Robin Waters, then age 16, was walking around in the
area of Horton Plaza that night. She noticed a group of
about 20 people at the corner of Fifth Avenue and
Broadway. She knew that some of the people wearing
red attire in that group were members of the Bloods gang.
Red was the gang color of the Bloods. While attending
Point Loma High School, Waters had become acquainted
with various individuals who were affiliated with the
Bloods and Crips gangs.

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Waters noticed an individual was “disrespecting” the
congregated group. He seemed to be chanting some
kind of battle cry, and he made a “C” gesture with his
hand, which Waters knew was a symbol typically thrown
up by members of the Crips gang. Crips are rivals of the
Bloods. Waters did not see the person who had flashed
the “C” symbol in possession of any weapons. The

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lighting in the area was good.
Almost immediately after the person made the gesture
with his hands, Waters heard gunshots. She was
between the shooter and the person the shooter was
firing at (the person who had made the gesture). Waters
recalled that three or four shots were fired.
Maria Palma, who was waiting for a bus not far away from
the shooter and the group, was struck in the buttocks by
one of the bullets. She was hospitalized and the bullet
was removed.

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Police officers who responded to the shooting found Fred
sitting on a bus bench in the 700 block of Broadway. At
the time he was shot, Fred had not bumped into anybody
and had not reached for any weapon. He was
transported to the hospital where he was pronounced
dead. The cause of death was loss of blood as a result of
two gunshot wounds to the back. No alcohol or illicit
drugs were found in Fred’s blood. No weapons were
found on his person.
Locke’s father testified he had placed a .38-caliber
handgun in his dresser drawer sometime during the early
months of 1999. In May or June, he discovered that the
handgun was missing. He also discovered that a second
(.22-caliber) handgun he owned was also missing. Locke
initially denied taking the firearms, but later admitted to
his father that he had taken the .38-caliber handgun.
Although the handgun that was used to shoot Fred and
Palma was never recovered, a criminalist determined that
all three bullets fired at the scene were fired from the
same .38-caliber handgun.
Detective Joseph Howie of the San Diego Police
Department testified that when he interviewed Locke on
May 15, 1999 (the day of the shooting), Locke claimed he
was a member of the Lincoln Park Bloods gang. Locke
denied knowing who the shooter was. Detective Howie
also interviewed McKinley, who also admitted he was a

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member of the Lincoln Park Bloods gang.
In the latter part of May 1999, Locke went to Oklahoma
and stayed with his maternal grandmother.
Detective Bruce Pendleton testified as a gang expert. He
stated that Locke and McKinley were both Lincoln Park
gang members on the day of the shooting. He opined
that the killing of Fred was done for the purpose of
enhancing the reputation of the Lincoln Park Bloods, and
also for the purpose of enhancing Locke’s reputation.
May 22, 2002 Interview and Locke’s Waiver of His
Miranda Rights
On May 22, 2002, after they traveled to Oklahoma and
transported Locke back to San Diego, Detectives Howie
and Robert Donaldson interviewed Locke. The interview
(the May 22 interview) was videotaped and the videotape
was played to the jury.
Before Locke was questioned about the shooting incident,
he was given Miranda warnings. Locke stated he
understood each of his Miranda rights and waived those
rights by agreeing to answer the questions. Detective
Howie testified that prior to the May 22 interview, he
advised Locke that he had been charged with murder.

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During the May 22 interview, Locke stated he was a
member of the Lincoln Park Bloods at the time of the
shooting. Locke admitted he shot Fred. He did so
because he saw Fred with a gun. He stated that he fired
his gun when Fred turned around. Fred had come
through the Bloods group, “cussing” and “disrespecting,”
and had reached for a gun in his waistband. Locke was
accompanied by his fellow gang members McKinley and
Andre Luster. Locke admitted that he took his father’s
.38-caliber handgun. Locke had purchased bullets for the
gun.

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May 24, 2002 Interview and Locke’s Waiver of His
Miranda Rights and His Sixth Amendment Right to
Counsel

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Detective Donaldson testified about a second recorded
interview of Locke on May 24, 2002 (the May 24
interview). Detective Donaldson was present, but the
questioning was conducted by Deputy District Attorney
(D.A.) Mark Amador. The videotape of the May 24
interview was played to the jury.
At the beginning of the May 24 interview, Deputy D.A.
Amador gave Locke the Miranda warnings. Locke stated
he understood each of his Miranda rights and waived
those rights by agreeing to answer the questions.

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Immediately thereafter, Deputy D.A. Amador asked
Locke, “[Y]ou know that you’ve been charged in this case,
that’s why they extradited you from Oklahoma, right?”
(Italics added.) When Locke replied, “Yes,” Deputy D.A.
Amador immediately advised him that since he had been
charged, under the Sixth Amendment he had the right to
an attorney. Deputy D.A. Amador then asked Locke, “Do
you waive that right?” Locke replied, “Yeah.”

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After Waiving his Miranda rights and his Sixth
Amendment right to counsel, Locke again admitted that
he shot Fred. He stated he was the only one in his group
with a gun. It was a .38-caliber revolver. He again
testified he had seen a gun on Fred. Fred was claiming
to be a Crip. Locke stated he remembered firing the gun
three times. He believed killing a Crip was a “badge of
honor” that would increase his reputation with the Bloods.
After the killing, other Bloods gang members began
calling Locke “Killer” and giving him more respect. He
stated he went to Oklahoma after the killing to avoid being
arrested by the police, but he had planned the trip before
the killing. When confronted with the fact that Fred had
been shot twice in the back, Locke stated that Fred “could
have been running away,” but Locke did not remember.

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B. The Defense
Locke testified at trial and recanted much of what he
stated during the May 22 and May 24 interviews. He
stated that although he “used to be” a Lincoln Park Blood,
he was not a Lincoln Park Blood at the time of the
shooting and that McKinley was the shooter. He also
testified that he moved to Oklahoma a week or two after
the shooting not to run away from the police, but because
his relatives and fiancé were there. He did not tell the
police that McKinley was the shooter because he feared
for his father’s safety if he did so.

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Locke also stated that just before the May 22 interview
occurred, Detective Howie told him the shooting of Fred
was not a first degree or second degree murder and
suggested that some type of manslaughter charge was
probably appropriate.

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C. The People’s Rebuttal Case
Sharay Jones testified that Locke called her from
Oklahoma about a month after the shooting. Locke told
her, “I’m running from the police” and “I did something
real bad.”
Detective Donaldson testified that he never heard
Detective Howie say anything to Locke about what level
of homicide charge was appropriate for this case. He
never heard Detective Howie imply that the district
attorney would be lenient if Locke admitted he was the
shooter.
Detective Howie testified that when he interviewed Locke
in Oklahoma on February 27, 2001, Locke denied that he
was the shooter and also denied that McKinley was the
shooter. During that interview, Locke also denied he had
a gun on the night of the shooting. Detective Howie
denied discussing levels of homicide with Locke and

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denied telling Locke that he might receive lenient
treatment.

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(Lodgment No. 7 at 2-7.)

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III.

PROCEDURAL BACKGROUND
A jury found Petitioner Marvin Locke guilty of second-degree murder, Cal.

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Penal Code § 187(a), and assault with a firearm, Cal. Penal Code § 245(a)(2).

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True findings were made by the jury that in the murder, Petitioner personally

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used a firearm, Cal. Penal Code §§ 12022.5(a)(1) and12022(b)-(d), and

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Petitioner committed the offense for the benefit of a street gang, Cal. Penal Code

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§ 186.22(b)(1). In regard to the assault, true findings were made that Petitioner

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personally used a firearm, Cal. Penal Code § 12022.5(a)(1). The trial court

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sentenced Petitioner to prison for 41 years to life. (Lodgment No. 7 at 1-2.)

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Thereafter, Petitioner initiated a direct appeal of his conviction, challenging

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statements he made to officers as unconstitutional under Miranda v. Arizona, 384

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U.S. 436 (1966). (Lodgment No. 4.) The California Court of Appeal rejected the

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claim. (Lodgment No. 7.) The California Supreme Court denied Petitioner’s

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petition for review without comment on June 23, 2004. (Lodgment No. 9.)

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On June 21, 2016, Petitioner filed a habeas petition in the San Diego

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County Superior Court, claiming his conviction was invalid because Johnson v.

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United States, 135 S .Ct. 2551 (2015) applies retroactively to his conviction for

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second-degree murder. (Lodgment No. 10.) Although this petition was filed

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more than 13 years after sentencing, the Superior Court found it to be timely to

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the extent it relied on Johnson, which was not decided until 2015, and denied the

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claim on the merits. (Lodgment No. 11.) Petitioner then filed a habeas petition in

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the California Court of Appeal, raising the same claim. (Lodgment No. 12.) The

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Court of Appeal denied the claim on the merits. (Lodgment No. 13.) Petitioner

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then filed a habeas petition in the California Supreme Court, raising the same

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claim. (Lodgment No. 14.) The California Supreme Court denied the petition

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without comment on November 16, 2016. (Lodgment No. 15.)
On February 12, 2017, Petitioner filed his Petition in this Court.

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Respondent filed an answer on May 8, 2017, and Petitioner filed a traverse on

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June 16, 2017.

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IV.

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DISCUSSION
Petitioner raises two claims in this petition. First, Petitioner claims a

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petition for writ of habeas corpus is an “appropriate vehicle for second or

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successive petition.” (Doc. No. 1 at 6.) Second, Petitioner claims his conviction

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for second-degree murder is invalid under Johnson. (Id. at 7.)

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A.

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Title 28, United States Code, § 2254(a) sets forth the following scope of

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Standard of Review

review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a).
The current Petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). As
amended, 28 U.S.C. § 2254(d) reads:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim --

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(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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28 U.S.C. § 2254(d)(1)-(2). The Supreme Court interprets § 2254(d)(1) as
follows:
Under the “contrary to” clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by this Court on a question of law or if the state court decides a case
differently than this Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.

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Williams v. Taylor, 529 U.S. 362, 412-13 (2000); see also Lockyer v. Andrade,

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538 U.S. 63, 73-74 (2003).

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Where there is no reasoned decision from the state’s highest court, the

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Court “looks through” to the underlying appellate court decision. Ylst v.

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Nunnemaker, 501 U.S. 797, 801-06 (1991). If the dispositive state court order

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does not “furnish a basis for its reasoning,” federal habeas courts must conduct

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an independent review of the record to determine whether the state court’s

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decision is contrary to, or an unreasonable application of, clearly established

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Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000)

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(overruled on other grounds by Lockyer, 538 U.S. at 75-76); Himes v. Thompson,

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336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme

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Court precedent when resolving a habeas corpus claim. Early v. Packer, 537

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U.S. 3, 8 (2002). “[S]o long as neither the reasoning nor the result of the state-

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court decision contradicts [Supreme Court precedent],” the state court decision

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will not be “contrary to” clearly established federal law. Id.

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B.

Claim 1

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Petitioner first claims, without any explanation as to how this proposition

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applies to his case, a petition for habeas corpus is an appropriate vehicle for a

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second or successive petition. (Doc. No. 1 at 6.) This Petition, however, is the

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first Federal habeas petition Petitioner has filed. Because this is his first federal

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habeas petition, the issue is moot.1

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C.

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Petitioner claims next that his conviction for second degree murder is

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Claim 2

invalid under Johnson. Specifically, Petitioner claims his conviction is invalid

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because California’s “inherently dangerous felony murder rule” is

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unconstitutionally vague under Johnson and, therefore, the decision of the

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California Court of Appeal is contrary to clearly established U.S. Supreme Court

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precedent. (See Doc. No. 12 at 8-10.)

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Under AEDPA, a habeas petition will not be granted with respect to any

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claim adjudicated on the merits by the state court unless that adjudication: (1)

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resulted in a decision that was contrary to, or involved an unreasonable

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application of clearly established federal law; or (2) resulted in a decision that

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was based on an unreasonable determination of the facts in light of evidence

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presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer,

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537 U.S. 3, 8 (2003). Petitioner’s claim here arises under § 2254(d)(1). Clearly

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established federal law, for purposes of § 2254(d)(1), means “the governing

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principle or principles set forth by the Supreme Court at the time the state court

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renders its decision.” Andrade, 538 U.S. at 72.

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1 Respondent theorizes Petitioner’s first claim may be a preemptive argument regarding the timeliness of his
Petition. (Doc. No. 5 at 4.) Because 13 years had passed since his sentencing when Petitioner first presented
his Johnson-based habeas claim to the state courts, timeliness was an issue there. The Superior Court
concluded that as far as his petition concerned the ruling in Johnson, the 13 year delay between sentencing and
the filing of his petition was justified, because Johnson was not decided until 2015. (Lodgment No. 11 at 3.)
Here, however, no issue has been raised, and there does not appear to be one, with respect to the timeliness of
Petitioner’s federal habeas Petition.

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The Supreme Court precedent on which Petitioner relies is Johnson, which

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held imposing an increased sentence under the Armed Career Criminal Act’s

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(“ACCA”) “residual clause” violated due process. Johnson, 135 S. Ct. at 2554. In

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Johnson, the petitioner pled guilty to being a felon in possession of a firearm in

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violation of federal law, namely 18 U.S.C. § 922(g). Id. at 2556. Under the ACCA,

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a person convicted under § 922(g) could face an enhanced sentence with a

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minimum of 15 years if that offender had three or more earlier convictions for a

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“serious drug offense” or a “violent felony.” Id. at 2555. In Johnson, the petitioner

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was given this enhanced minimum sentence under the ACCA based upon prior

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convictions for “violent felonies.” Id. at 2556. The petitioner took issue with

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whether possession of a short-barreled shotgun qualifed as a violent felony under

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the ACCA’s definition of violent felonies. Id. The specific question before the

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Supreme Court was whether this offense qualified as a violent felony under the

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ACCA’s definition of violent felony in the statute’s residual clause: “(ii) is burglary,

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arson, or extortion, involves use of explosives, or otherwise involves conduct that

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presents a serious potential risk of physical injury to another.” Id. at 2555-56

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(residual clause italicized).

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unconstitutionally vague for two reasons: (1) the residual clause left grave

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uncertainty about how to estimate the risk posed by a crime and (2) the residual

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clause also left uncertainty about how much risk it takes for a crime to qualify as a

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violent felony. Id. at 2558. Petitioner contends this principle should similarly apply

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to California’s second degree felony murder rule. (See Doc. No. 12 at 9-10.)

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Petitioner’s claim rests on the assumption he was convicted for second

The Court decided the residual clause was

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degree murder, specifically under California’s second degree felony murder rule.

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Petitioner claims the language “inherently dangerous to human life” in the second

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degree felony murder rule is unconstitutionally vague under Johnson. In order

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for Petitioner to have standing to bring such a claim, however, he would have to

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have been convicted under the second degree felony murder rule, which he was

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not.

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As discussed by the Court of Appeal, Petitioner was convicted for second

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degree murder, assault with a firearm, plus several enhancements. (Lodgment

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No. 13.) He personally shot and killed Fred Jones, because, he said, Jones

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made gang-related comments and gestures and because Petitioner believed

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Jones was armed. (Lodgment No. 7 at 2-6.) As the California Court of Appeal

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observed, the record is devoid of any crime that would trigger the felony murder

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rule. (Lodgment No. 13 at 1.)

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There also is no evidence the jury was given any sort of instruction as to a

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felony murder charge. In both his Petition and his Traverse, Petitioner

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references an appendix which contains all the jury instructions given to the jury at

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his trial. (See Doc. No. 1-3; Doc. No. 12.; Cf. Lodgment No. 2 at 77-160.)

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Nowhere in these jury instructions is there any instruction about the second

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degree felony murder rule. (See Lodgment No. 2 at 77-160.) There were two

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instructions given relating directly to second degree murder: CALJIC No. 8.30

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and 8.31, with adaptations. (Id. at 114-15.) These instructions read as follows:

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CALJIC 8.30: UNPREMEDITATED MURDER OF THE
SECOND DEGREE

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Murder of the second degree is also the unlawful killing of
a human being with malice aforethought when the
perpetrator intended unlawfully to kill a human being but
the evidence is insufficient to prove deliberation and
premeditation.

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CALJIC 8.31: SECOND DEGREE MURDER—KILLING
RESULTING FROM UNLAWFUL ACT DANGEROUS TO
LIFE
Murder of the second degree is also the unlawful killing of
a human being when:
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1. The killing resulted from an intentional act,

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2. The natural consequences of the act are dangerous to
human life, and

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3. The act was deliberately performed with knowledge of
the danger to, and with conscious disregard for, human
life

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When the killing is the direct result of such an act, it is not
necessary to prove that the defendant intended that the
act would result in the death of a human being.

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(Id.) The phrases “inherently dangerous” and “inherently dangerous to human

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life” appear nowhere in the jury instructions regarding second degree murder.

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(Id.) In fact, neither of these phrases appears in any of the jury instructions –

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there simply is no mention of the felony murder rule anywhere in the jury

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instructions. (See Id. at 77-160.) Neither the facts of his conviction nor the jury

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instructions at trial indicate Petitioner was convicted under California’s second

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degree felony murder rule. The issue of whether California’s second degree

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felony murder rule is unconstitutional under Johnson is, thus, immaterial to

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Petitioner’s case. Accordingly, this Court recommends Petitioner’s claim be

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denied.

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V.

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RECOMMENDATION
After a thorough review of the record in this matter, the undersigned

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magistrate judge finds Petitioner has not shown that he is entitled to federal

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habeas relief under the applicable legal standards and, accordingly, the

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undersigned magistrate judge hereby recommends that the Petition be DENIED

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WITH PREJUDICE and that judgment be entered accordingly.

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This Report and Recommendation is submitted to the Honorable Janis L.

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Sammartino, United States District Judge assigned to this case, pursuant to the

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provisions of 28 U.S.C. § 636(b)(1). IT IS ORDERED that not later than August
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23, 2017, any party may file written objections with the Court and serve a copy

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on all parties. The document should be captioned “Objections to Report and

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Recommendation.” IT IS FURTHER ORDERED that any reply to the objections

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shall be served and filed not later than August 31, 2017. The parties are

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advised that failure to file objections within the specified time may waive the right

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to raise those objections on appeal of the Court’s order. See Turner v. Duncan,

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

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1991).

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IT IS SO ORDERED.
Dated: August 4, 2017

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