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Jordan v. Evans

September 14, 2007

DOYLE D. JORDAN, PETITIONER,
v.
WARDEN EVANS, RESPONDENT.



The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER: (1) ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; AND (2) DENYING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS.

Before the Court is Magistrate Judge Nita L. Stormes' Report and Recommendation ("R&R") recommending that the Court deny Petitioner Doyle D. Jordan's Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. [Doc. No. 6.] As of this date, Petitioner has not filed Objections to the R&R. For the reasons set forth below, this Court ADOPTS the R&R and DENIES the Petition in its entirety.

Factual Background

The following statement of facts is taken from the appellate court opinion denying Petitioner's state habeas petition:

On December 16, 2006, a man later identified as [Petitioner] entered a shoe store in Rancho San Diego wearing a green trench coat and carrying a shotgun. The man approached the manager, cocked the shotgun, causing a shell to fall to the floor, and demanded money. After taking $153 from the manager, the man left the store in a white truck with out-of-state plates. The next day, the San Diego County Sheriff's Department recovered a stolen white GMC Sierra Truck with out-of-state plates in front of a residence in Lemon Grove. The Sierra contained a green trench coat, a shotgun and shells of the same color and type found in the shoe store. Deputies arrested [Petitioner] in a motor home parked in the driveway of the same residence.

The shoe store manager believed the man who robbed the store had a lightning bolt or flame tattoo on his neck and a starburst or compass tattoo on his left hand. [Petitioner] does not have a tattoo on his neck but does have a tattoo with points on his left hand. The manager failed to identify [Petitioner] in a pretrial photographic lineup. A customer present in the store at the time of the robbery identified [Petitioner] as the man who committed the robbery in a pretrial photographic lineup. Both the manager and the customer identified [Petitioner] at trial.

When shown photographs of the Sierra seized in front of the home where [Petitioner] was staying, the manager identified the truck as the "very same" truck involved in the robbery. The customer identified the truck as a similar truck but not the same truck. The customer was certain the truck involved in the robbery was a Ford F-150. Both the manager and the customer described the truck involved in the robbery as having out-of-state plates.

(Lodgm't No. 6, People v. Jordan, No. 042720, slip op. at 2-3 (Cal. Ct. App. June 25, 2004).)

Procedural Background

On April 8, 2003, a jury convicted Petitioner of the following crimes: (1) robbery, (2) use of a firearm during the commission of the robbery, (3) assault with a firearm, (4) second degree burglary, (5) use of a firearm during the commission of the burglary, (6) unlawful taking or driving of a vehicle, and (7) possession of a firearm by a felon. (See Lodgm't No. 2 at 662-64.) Petitioner waived his right to a trial on his criminal history allegations, and admitted that a 1996 bank robbery was a "serious felony" prior and a "strike prior" under California law. (See id. at

On June 25, 2003, the trial court sentenced Petitioner to twenty-five years incarceration. at 907.)

Petitioner appealed the robbery, burglary, and assault convictions, raising the single claim that the convictions violated his due process rights because they were based on insufficient evidence. (Lodgm't No. 3 at 9.) The California Court of Appeal rejected this claim, finding that the jury's factual determinations were supported by substantial evidence, and affirmed Petitioner's conviction and sentence. (See Lodgm't No. 6.) Petitioner then requested a rehearing for the appellate court to consider whether Petitioner's upper-term sentence was unconstitutional under the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004). (See Lodgm't No. 7.)The appellate court granted the request, and ordered briefing on the single issue of whether the Blakely decision had any impact on Petitioner's sentence. (Lodgm't No. 8.) The appellate court eventually affirmed Petitioner's conviction and sentence in full. (Lodgm't No. 19 at 9.) On January 18, 2006, the California Supreme Court denied Petitioner's final Petition for Review.(Lodgm'tNo. 19.)On March 12, 2007, Petitioner filed the instant Petition in this Court pursuant to 28 U.S.C. § 2254.(Id.)

Legal Standard

I. State Prisoner Habeas Corpus Standard

A federal court's duty in examining a state prisoner's habeas petition is governed by the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254. Pursuant to AEDPA, a federal court may grant habeas corpus relief from a state court judgment only if the adjudication was (1) contrary to, or involved an unreasonable application of, clearly established federal law, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002).

A federal court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Lockyer v. Andrade, 538 U.S. 63, 73 (2003). The court may grant relief under the "unreasonable determination" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular Id. at 76. Additionally, the state court's factual determinations are presumed correct, and the petitioner carries the burden of rebutting this presumption with "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

II. Reviewing a Magistrate Judge's R&R

The district court's duties in connection with a magistrate judge's R&R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). The district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 676 (1980). "When no objections are filed, the district court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law." Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). "Under such circumstances, the Ninth Circuit has held that 'a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo.' " Id. (quoting Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989)). As of this date, Petitioner has not filed objections to the R&R. Accordingly, this Court will decide the Petition on the applicable law.

Discussion

Petitioner raises two claims: (1) his Due Process rights were violated at trial because the evidence was insufficient to sustain his robbery, burglary, and assault with a firearm convictions; and (2) the trial court erred in imposing the upper-term sentence for his robbery conviction by finding aggravating factors to be true without a jury trial in violation of his Due Process and Confrontation Clause rights. (Pet'r's Pet. at 6-7.) Respondent has answered the Petition, and argues that the California Court of Appeal reasonably rejected Petitioner's insufficiency of the evidence claim. (Answer at 6-7.) With respect to Petitioner's second claim, Respondent contends the claim should be denied because granting relief would violate the United States Supreme Court's holding in Teague v. Lane, 489 U.S. 288 (1989), which prohibits the retroactive application on federal habeas review of a new rule of constitutional law, and in the alternative, that the claim is unexhausted. (Id. at 7, 10.)

I. Claim One: Insufficiency of the Evidence

Petitioner contends that the eyewitness testimonial evidence presented at trial was constitutionally insufficient to support his convictions. (Supp. Mem. Attach. to Pet. ("Pet'r's Mem.") at 1.) Petitioner claims that the two witnesses to the robbery, the store manager and a store customer, each gave detailed descriptions of his physical features and the "getaway" truck that conclusively excluded Petitioner as a suspect. (Id.) Petitioner argues that the store manager, the individual who had the closest contact with the robber and handed over the store's cash, testified that the robber had a tattoo on his neck. (Id.) Petitioner does not have a tattoo on his neck. (Id.)The store manager also failed to identify Petitioner out of the initial photographic lineup, and could not positively identify Petitioner as the robber until he saw him in court. (Id. at 1-2.) Petitioner argues that although the store customer correctly identified him in an initial photographic lineup, the lineup was unfairly suggestive because Petitioner's long and conspicuous goatee made him stand out from the other individuals in the lineup. (Id. at 2.) In addition, the customer testified that the GMC truck found in front of the house where Petitioner was staying when the police found him was not the "getaway" truck. (Id.)Based on these discrepancies, Petitioner argues that the witnesses' testimony was unreliable and inherently improbable, and therefore constituted insufficient evidence to support the jury's guilty verdict. at 1-3.)

Petitioner raised this claim on direct appeal. (See Lodgm't Nos. 6, 17.) The California Court of Appeal rejected Petitioner's argument,*fn1 and concluded that neither the store manager's nor the store customer's testimony was inherently improbable. (Lodgm't No. 6 at 4.) Specifically, the appellate court noted:

Both [witnesses] positively identified [Petitioner] as the robber in court. Both described the getaway vehicle as a white pickup truck with out-of-state plates.

Both described the robber's shotgun and identified the green trench coat. The jury was entitled to determine the credibility of these and other witnesses and to resolve discrepancies in testimony. The factual determinations in this case are fully supported by substantial evidence. .) Respondent argues that the appellate court correctly rejected this claim and found that the testimony presented at trial amply supported the jury's factual determinations. (Answer at 6.)

There is sufficient evidence to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis added). In making such a determination, a reviewing court is guided by a number of principles which reflect the doctrine that "deference [is] owed to the trier of fact." Wright v. West, 505 U.S. 277, 296 (1992). For example, "a federal habeas court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326. In addition, it is the province of the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. at 319; see also Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). As the Ninth Circuit has explained, "[t]he question is not whether we are personally convinced beyond a reasonable doubt. It is whether rational jurors could reach the conclusion that these jurors reached." Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991). Although the court "normally must accept the jury's implicit determinations of credibility" concerning eyewitness testimony, the court is "permitted to disregard inherently improbable testimony."*fn2 United States v. Ramos-Rascon, 8 F.3d 704, 709 n.3 (9th Cir. 1993) (citations omitted).

Petitioner contends that the eyewitness testimony presented at trial was inherently improbable and should have been disregarded by the jury. (Pet'r's Mem. at 1.) He argues that if this testimony is disregarded, the remaining evidence is insufficient to support his convictions for robbing the shoe store at gunpoint. (Id.) The prosecution called the store manager, Larry Foster, as its first witness at trial. (Lodgm't No. 2 at 9.) Mr. Foster described the events surrounding the 10:50 a.m. robbery ...


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