United States District Court, N.D. California
September 12, 2005.
JAMES BROADWAY, Petitioner
CK PLILER, Warden, Respondent.
The opinion of the court was delivered by: VAUGHN WALKER, District Judge
On July 15, 1996, petitioner James Broadway ("Broadway") was
convicted by a jury in the Superior Court of the State of
California in and for the County of Santa Clara ("superior
court") of one count of first degree attempted murder and two
counts of assault with a firearm. Doc #25 (Respondent CK Pliler
("Pliler") Opp) at 2. The jury found further that Broadway
committed the crimes for the benefit of a criminal street gang.
On January 9, 1997, the superior court sentenced Broadway to a
total state prison term of 17 years to life an indeterminate
term of 15 years to life for attempted murder; a determinate term
of three years for the assault counts running concurrently; and a two-year street
gang enhancement. Id.
On May 12, 1999, the California Court of Appeal, Sixth
Appellate District ("court of appeal") issued an order to show
cause returnable in the superior court on Broadway's petition for
a writ of habeas corpus. Ex D4 ("Order to Show Cause").
Specifically, Broadway claimed that the prosecution withheld
"favorable and material impeachment information." Id.
On July 16, 1999, the court of appeal affirmed the superior
court's conviction on direct appeal. Ex B12 ("App Ct Affirm") at
30. The court of appeal, however, modified Broadway's term to 15
years to life because it found that Cal Penal Code § 186.22(b)
did not allow a gang enhancement term to be added to a 15 years
to life prison sentence. Id. The California Supreme Court denied
Broadway's petition for review on October 22, 1999.
On November 17, 2000, after holding a hearing pursuant to the
court of appeal's order to show cause, the superior court
rejected Broadway's habeas corpus petition claim that the
prosecution failed to disclose favorable evidence. Ex C5
("Superior Ct Rej"). The court of appeal and California Supreme
Court denied Broadway's habeas corpus petition on April 8, 2002,
and November 13, 2002, respectively.
Broadway filed a federal petition for a writ of habeas corpus
under 28 USC § 2254 on December 18, 2003, Doc #1 ("Broad Pet"),
and an amended petition on May 26, 2004, Doc #9 ("Broad Amend
Pet"). After this court issued an order to show cause, Doc #10,
Pliler filed an answer, Doc #24, and opposition memorandum, Doc #25 ("Pliler Opp"), on April 28, 2005. Broadway did not file
The court of appeal summarized the facts of the case as
On January 27, 1996, Andre Smith, Tiagmal "Maurice"
Bagsby and Fred Gordon attended a talent show at San
Jose's Independence High School (IHS). Smith is a
member of the Cartel Crips gang (CC) previously known
as C-Mob. There was evidence that Bagsby and Gordon
were Crips "wannabes" who associated with Crips, and
Bagsby acknowledged he had heard of the CC and Family
Gangster Crips (FGC).
As Bagsby, Gordon and Smith left the show between 10
and 11:30 pm, Bagsby got into a verbal confrontation
with defendant Broadway, who was standing by a
Cutlass automobile parked near a dark mini-van.
Defendants Broadway, Williams, Tyson, and Holmes, who
were part of a group standing near those two
vehicles, were identified as members of Mount
Pleasant Hoods (MPH), a Blood gang. Once a member of
the Crip gang C-Mob, Broadway had "flip-flopped" to
As he passed within approximately 25 feet of the
group, Bagsby heard Broadway say, "that's the little
crab, Maurice." Bagsby, who knew "crab" was a
"derogatory" term used by Bloods to disrespect Crips,
asked if Broadway "had a problem," because he felt
Broadway's comment had been made in a way that
challenged a fight. Gordon and Smith overheard the
derogatory term directed towards Bagsby, and Smith
reported that he also heard people within Broadway's
group saying "MP Hood" and "Blood." Smith thought
Bagsby "was getting into it with the slobs
[derogatory term for a Blood]."
After his verbal interaction with Broadway, Bagsby
saw Holmes open the Cutlass trunk and start "digging
for something" inside it. Bagsby backed up and
fearfully told Gordon and Smith that "we got some
funk," which meant "something [was] about to happen."
Bagsby testified Broadway looked like he wanted to
fight, and Gordon said it was "like a stare down."
Holmes, Tyson, and Williams entered the Cutlass as
Broadway got into its driver's seat. The Cutlass then
exited the IHS gate and turned right onto Jackson
Avenue. Bagsby, Gordon and Smith walked out the same gate and
turned right. They then saw the Cutlass return on the
opposite side of Jackson, "flying down the street" at
over 30 miles per hour with somebody shooting at them
from the car. While someone shouted something about
"MP Hoods," two shots were fired from the driver's
side window. Bagsby testified the shots could have
come from the back seat. As Bagsby, Gordon and Smith
ran and ducked, Smith was shot in the leg. Bagsby and
Gordon helped Smith to Bagsby's home across the
street from the back side of IHS. Bagsby then called
911. That night, Bagsby told Officer Lee that the car
involved in the shooting had "slowed down" before the
shots were fired towards the sidewalk near the IHS
parking lot. Smith testified he did not know who
fired the shots but he earlier had said either
Williams or Broadway was the shooter because "when
[he] got shot, [he] [had] seen [Williams's] car."
Ameena Wilson, a Blood gang associate and friend of
Tyson, was with defendants in the IHS lot after the
show with Monica Mitchell, who was a friend of
Holmes. Wilson, who was driving her mother's burgundy
mini-van, did not see any altercation involving
defendants that night. After defendants left the lot,
she and Mitchell drove to Tyson's house to visit him.
Holmes also was there. The girls stayed about an hour
and then left with Holmes. Mitchell, who said she did
not see or hear anything regarding a shooting near
IHS that night, acknowledged that calling someone
believed to be a Crip a "crab" would constitute
Sometime after 11:30 pm, Officer Morales of San
Jose's Violent Crime Enforcement Team located the
maroon mini-van reported to be associated with the
IHS shooting in front of Tyson's house. The van was
kept under surveillance until it left Tyson's street
about an hour later. At that point, Officer Chrisman
stopped the van and identified Wilson as the driver.
There was a second female in front, and Holmes was in
the rear. Chrisman searched the van and found a
loaded, .25 caliber handgun underneath an infant seat
next to Holmes.
Smith testified Tyson was a member of MPH, that he
and Tyson were enemies, and that Broadway used to be
in the Crip "hood" to which Smith belongs. Prior to
the shooting, Smith had been involved in a fight with
Williams. Smith said he fought with Williams at that
time because he was drunk and because Williams is "a
slob," i.e., "a Blood. The opposite, the other side"
from being a Crip, which is what Smith was.
Detective Dunson, the lead investigator on this case
and an expert in African American San Jose street gangs, specifically the Bloods and Crips, testified
there is a "longtime rivalry" between the Bloods and
the Crips and that this IHS drive-by shooting
occurred due to a rivalry between the Blood MPH
members and the CC, FGC, and Seven Tree Crips (STC).
Dunson said this rivalry particularly involved Smith
and Williams and that this IHS shooting was motivated
in part by Smith's having "disrespected" Williams in
front of Williams's girlfriend and relatives as well
as by the confrontation in the IHS parking lot.
Dunson opined that the shooting was committed for the
benefit of, and in association with, members of the
MPH Blood gang, for "reputation and retaliation," to
promote, further and assist that gang's criminal
conduct. He identified Tyson, Holmes, and Broadway as
"hard core" MPH members, and noted that Williams was
an MPH associate. Dunson identified Smith as a CC
member, and Bagsby and Gordon as associates of STC
Both Dunson and Detective Boyd, another criminal
street gang expert, testified to previous
altercations involving MPH and San Jose Crips gangs.
They described (1) a September 1992 Crip party,
during which a group of MPH members drove by and shot
towards the residence, striking a female Crip
associate several times, (2) a subsequent act of
witness intimidation in which a male who saw the
shooting at the 1992 party and his girlfriend were
intimidated by MPH members, (3) a May 1994 incident
in which MPH members shot at a Crip and yelled Blood
slogans and (4) a June 1994 "payback" homicide
committed by Crips, in which Crips were chased and
killed someone they erroneously believed was an MPH
Dunson interviewed Smith, Bagsby, and Tyson. Smith
believed it was the driver who had shot from the
Cutlass. Bagsby said he was arguing with Broadway,
and he saw Broadway drive the Cutlass out of the IHS
lot. Tyson admitted he was an MPH member and
described previous altercations between MPH and FGC.
A week after the shooting, Williams came to the
police station and was interviewed by Dunson.
Williams said he saw the confrontation in the IHS lot
on January 27[, 1996]. He said someone else drove his
Cutlass out of the lot but had pulled over and
switched positions with Williams, who had been the
front passenger. Williams was driving northbound on
Jackson toward IHS trying to get to the freeway when
he heard two shots fired from the rear of the car.
Williams consented to a search of his Cutlass; on the
front passenger seat floorboard Dunson found a .38
caliber shell casing similar to a .38 shell casing
that had been found shortly after the shooting on the
median across from IHS. When Dunson interviewed Broadway, Broadway admitted
getting into a confrontation with Bagsby in the IHS
lot. Broadway said when Holmes went to get a "deuce
five" or "twenty-five caliber" handgun in the trunk,
he felt "it was a good time to leave," so he jumped
into the driver's seat of the Cutlass and drove out
of the lot. He had the keys to the Cutlass because he
had driven it to IHS. Broadway said he "thought he
was too drunk to drive" so he had pulled over and
someone else started driving. As they drove past the
school, he heard two shots being fired and ducked
down in the car.
App Ct Affirm at 3-7 (footnotes omitted).
A federal writ of habeas corpus may not be granted with respect
to any claim that was adjudicated on the merits in state court
unless the state court's 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 (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." 28 USC § 2254(d).
"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 [the Supreme] Court on a question of
law or if the state court decides a case differently than [the]
Court has on a set of materially indistinguishable facts."
Williams v. Taylor, 529 US 362, 412-13 (2000). "Under the
`unreasonable application' clause, a federal habeas court may
grant the writ if the state court identifies the correct
governing legal principle from [the] Court's decisions but unreasonably applies
that principle to the facts of the prisoner's case." Id at 413.
"[A] federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must
also be unreasonable." Id at 411. A federal habeas court making
the "unreasonable application" inquiry should ask whether the
state court's application of clearly established federal law was
"objectively unreasonable." Id at 409.
The only definitive source of clearly established federal law
under 28 USC § 2254(d) is in the holdings (as opposed to the
dicta) of the Supreme Court as of the time of the state court
decision. Id at 412; Clark v. Murphy, 331 F3d 1062, 1069 (9th
Cir 2003). While circuit law may be "persuasive authority" for
purposes of determining whether a state court decision is an
unreasonable application of Supreme Court precedent, only the
Supreme Court's holdings are binding on the state courts and only
those holdings need be "reasonably" applied. Id.
In his federal amended petition for writ of habeas corpus,
Broadway claims (1) that the prosecution failed to disclose
favorable and material evidence to Broadway before trial and (2)
that Broadway was denied his right to effective assistance of
counsel during pretrial and trial stages. Broad Amend Pet at 6.
The court addresses each claim in turn. A
In Brady v. Maryland, 373 US 83 (1963), the Supreme Court
established the standard for determining whether the
prosecution's failure to disclose evidence violated a
petitioner's constitutional rights. The Supreme Court held that
"the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution." 373 US at 87. The
Court subsequently made clear that the duty to disclose such
evidence applies even if there has been no request by the
accused, United States v. Agurs, 427 US 97, 107 (1976), and that
the duty encompasses impeachment evidence as well as exculpatory
evidence, United States v. Bagley, 473 US 667, 676 (1985). The
Court also clarified that evidence is material "if there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different. A `reasonable probability' is a probability sufficient
to undermine confidence in the outcome." Id at 682.
In sum, there are three components to a Brady violation: (1)
"[t]he evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; (2) that
evidence must have been suppressed by the State, either willfully
or inadvertently; and (3) prejudice must have ensued." Strickler
v. Greene, 527 US 263, 281-82 (1999).
In the instant case, Broadway claims that the prosecution
failed to disclose material evidence concerning a pending civil
lawsuit filed by co-defendant Terrence Tyson ("Tyson") against
the San Jose Police Department ("police department") for
excessive use of force against Tyson and his father ("Tyson's lawsuit"). Broad
Amend Pet, Claim 1 at ¶ 1. Broadway argues that the prosecution
and investigators were or should have been aware of this lawsuit,
considering that Tyson was "one of the [main] suspects that was
possibly the gunman in the criminal matter." Id at ¶ 3. Broadway
states that Tyson's defense counsel "inexplicably removed himself
as counsel" during the trial, and Tyson proceeded without counsel
through the remainder of trial. Id at ¶ 4.
Furthermore, Broadway asserts that after Tyson's conviction was
overturned by an appeals court, the Santa Clara County district
attorney's office dismissed criminal charges against Tyson, "due
to a possible settlement agreement made between Tyson and the
Police Department, which was not disclosed to petitioner or his
counsel." Id at ¶ 5. Broadway contends that had the prosecution
disclosed information about Tyson's pending lawsuit, Broadway or
his counsel "may have discovered favorable evidence concerning
the San Jose Police Department possibly targeting [Broadway] and
some of his friends to remove from society based on allege[d]
gang affiliation." Id at ¶ 6.
Broadway is not entitled to relief on this claim because the
superior court's decision finding no violation of Broadway's due
process rights was a reasonable application of Brady.
28 USC § 2254(d). Following a hearing pursuant to the court of appeal's
order to show cause, the superior court determined that "the
impeachment value of the new evidence is so minimal that it would
not have made any difference whatsoever." Superior Ct Rej at 3.
The superior court found that because "[m]ost of the state
witnesses did not even know about the lawsuit[,] * * * it could
not have even arguably impacted their credibility or have been a
source of bias." Id. Specifically, the superior court found that
there was no proof that Officer Dunson, the lead investigator in
the instant case, knew about the Tyson's lawsuit. Id. Dunson's
testimony was "more favorable" to Tyson, who was "the most likely
target of bias," than to the other defendants. The superior court
concluded that because Dunson was not biased against Tyson, it
would not have appeared to the jury that Dunson was biased
against Broadway. Id.
The superior court found further that although Officer Boyd
the other officer who testified in Broadway's trial appeared to
have been aware of Tyson's lawsuit, this knowledge "had no
influence" on Boyd's testimony. Id. Boyd explained that lawsuits
alleging police misconduct are not uncommon and are generally
"never taken at face value by the officers named or the rest of
the department." Id at 3-4. Boyd was not personally named in the
lawsuit and "did not know enough about it to fear it had any
merit." Id at 4. The superior court found Boyd a credible witness
and concluded: "it appears highly unlikely that [Boyd's knowledge
of Tyson's lawsuit] actually caused any bias or that it would
appear to a jury to be a real source of bias." Id. In sum, the
superior court concluded that because the evidence of Tyson's
lawsuit was of "marginal significance," it did not prejudice
Broadway that the evidence was unavailable to him. Id.
Section 2254(e)(1) provides that in ruling on a federal
petition for writ of habeas corpus, "a determination of a factual
issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
28 USC § 2254(e)(1) (emphasis added).
The superior court's determination that any knowledge that
witnesses had of Tyson's lawsuit did not undermine their
credibility or serve as a source of bias to the jury is entitled
to a presumption of correctness, which Broadway does not rebut.
See id. Consequently, the superior court's conclusion that there
was no reasonable probability that the disclosure of this
evidence would have resulted in a different outcome cannot be
said to be objectively unreasonable. See 28 USC § 2254(d).
Broadway's assertions that Tyson proceeded without counsel
during trial and later "possibl[y]" entered into a settlement
agreement with the police department do not compel a different
result. These assertions provide no evidence supporting
Broadway's claim that the police department was "possibly
targeting [Broadway] and some of his friends to remove from
society based on allege[d] gang affiliation." Broad Amend Pet,
Claim 1 at ¶ 6.
Broadway is not entitled to federal habeas relief on his
In order to prevail on an ineffective assistance of counsel
claim, petitioner must establish two things. First, petitioner
must establish that counsel's performance was deficient, ie, that
it fell below an "objective standard of reasonableness" under
prevailing professional norms. Strickland v. Washington,
466 US 668, 687-88 (1984). Second, petitioner must establish that he was
prejudiced by counsel's deficient performance, ie, that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id at 694. A reasonable probability is a
probability sufficient to undermine the confidence in the
Broadway claims that he received ineffective assistance of
counsel because trial counsel (1) did not investigate or
challenge the criminal street gang enhancement allegation filed
against Broadway; (2) did not file a motion to suppress
"prejudicial and inflammatory evidence" evidence at trial
concerning Broadway's gang activity; and (3) did not file any
written or verbal motions to dismiss the allegations of assault
with a firearm and possession of a firearm. Broad Amend Pet,
Claim 2 at ¶ 4,5,7.
Although it appears that Broadway's ineffective assistance of
counsel claims have not been exhausted, they are clearly without
The court addresses each in turn.
Broadway first claims that his counsel "never hired an
investigator to investigate into [Broadway's] social background"
to challenge the prosecution's allegations that Broadway was a
gang member within the meaning of Cal Penal Code § 186.22(b).
Broad Amend Pet, Claim 2 at ¶ 4. Broadway asserts that he "is not
and was not a member of any street gang" and that his family
member and neighborhood friends could have been called as
witnesses to support this contention. Id at ¶ 5. A defense attorney has a general duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary. See Strickland,
466 US at 691. Strickland directs that "`a particular decision not to
investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to
counsel's judgments.'" Silva v. Woodford, 279 F3d 825, 836 (9th
Cir 2002) (quoting Strickland, 466 US at 491).
The Ninth Circuit has held that to establish that counsel was
ineffective for failing to produce a witness at trial, a habeas
petitioner must provide "evidence that this witness would have
provided helpful testimony for the defense," such as an affidavit
from the alleged witness. Dows v. Wood, 211 F3d 480, 486 (9th
Cir 2000). A defendant's mere speculation that a witness might
have given helpful information if interviewed is not enough to
establish ineffective assistance. See Bragg v. Galaza,
242 F3d 1082, 1087 (9th Cir 2001), amended, 253 F3d 1150 (9th Cir 2001).
Broadway's claim that his counsel provided ineffective
assistance by not investigating or calling witnesses to prove
that Broadway was not a member of a street gang is without merit.
The trial testimony extensively documented Broadway's street gang
affiliation, both as a former Crip gang C-Mob member and Mount
Pleasant Hoods (MPH) member. Broadway's mere speculation that
family members or friends may have provided helpful testimony for
the defense is insufficient. See id. 2
Broadway claims further that his counsel provided ineffective
assistance by not moving to suppress evidence of Broadway's
street gang activity. Broad Amend Pet, Claim 2 at ¶ 6. Hence,
according to Broadway, the "jury was led to believe that
[Broadway] was a member of a street gang based on the
introduction of the predicated offenses of gang activity that was
more attributed to co-defendants Corey Holes and Terrence Tyson,
not [Broadway]." Id.
The Ninth Circuit has held that "[t]o show prejudice under
Strickland from failure to file a motion, [petitioner] must
show that (1) had his counsel filed the motion, it is reasonable
that the trial court would have granted it as meritorious, and
(2) had the motion been granted, it is reasonable that there
would have been an outcome more favorable to [petitioner]."
Wilson v. Henry, 185 F3d 986, 990 (9th Cir 1999).
In the instant case, Broadway's counsel's decision not to move
to suppress evidence of Broadway's street gang activity was
reasonable under the Wilson standard. The evidence presented at
trial of Broadway's street gang activity was substantial. The
superior court found that Broadway had "flip-flopped" from the
Crip gang C-Mob to the Mount Pleasant Hoods (MPH). Detective
Dunson identified Broadway and his co-defendants, Tyson and
Holmes, as "hard core" MPH members. Broadway used gang
terminology in initiating the instant conflict between the Bloods
and the Crips. And, Broadway initially drove the vehicle
containing Bloods' members who subsequently committed the crime. This evidence was essential to the prosecution's case that as a
criminal street gang member, Broadway had the specific intent to
commit, encourage or facilitate criminal conduct. App Ct Affirm
at 8. Only by proving specific intent could the prosecution prove
Broadway guilty of attempted premeditated murder and assault with
a firearm under an aider and abetter theory.
It simply cannot be said that if Broadway's counsel had moved
to suppress this evidence, that the superior court would have
reasonably granted the motion "as meritorious." See Wilson,
185 F3d 986, 990.
Broadway finally claims that his counsel provided ineffective
assistance by not moving to dismiss the allegation of assault
with a firearm and the charge of possessing a firearm. Broad
Amend Pet, Claim 2 at ¶ 7. Broadway asserts that there were no
allegations or evidence presented by the prosecution to support
that Broadway assaulted any victims with a firearm or possessed a
Under the Wilson standard, Broadway's final ineffective
assistance claim also fails. In reviewing the jury's conviction
of Broadway, the court of appeal explicitly stated: "Because we
find sufficient evidence in the record to support [Broadway's]
convictions for [one count of first degree attempted murder and
two counts of assault with a firearm] on an aiding and abetting
theory, we choose not to evaluate the evidence based upon a
theory that [Broadway] was the direct perpetrator of the drive-by
shooting." App Ct Affirm at 9 (emphasis added). Under an aider and abettor theory, the prosecution did not need
to prove that Broadway possessed a firearm or assaulted the
victim with a firearm. Hence, the prosecution did not need to
present evidence demonstrating that Broadway was the direct
perpetrator. For this reason, a motion to dismiss the allegations
of assault and firearm possession would have been futile.
Broadway is not entitled to federal habeas relief on his
ineffective assistance of counsel claims.
For the foregoing reasons, the petition for a writ of habeas
corpus is DENIED. The clerk shall enter judgment in favor of
respondent and close the file.
IT IS SO ORDERED.
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