The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
Order Adopting Report and Recommendation and Denying Petition
Petitioner Sabubu Badila Rountree, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his first degree murder conviction in San Diego County Superior Court case number SCD 156327. On August 23, 2007, Magistrate Judge Jan M. Adler filed a Report and Recommendation ("R&R"), recommending the Court deny the petition. Petitioner has filed objections. Following de novo review, the Court adopts in full the R&R and DENIES the petition.
The Court need not repeat the underlying facts as fully set forth in Magistrate Judge Adler's R&R, but will instead provide a brief summary. Just before midnight on December 24, 1999, Petitioner, a documented member of the "Lincoln Park Bloods" gang, was attacked by three or four members of the Neighborhood Crips gang while standing outside an American Legion Club just south of Market Street in San Diego. A little after 1:00 a.m. on December 25, 1999, near the intersection of 47th and Market Streets, the victim, Mr. Huffman, was shot and killed.
Tasha Devasher testified at trial that she saw Petitioner shoot Mr. Huffman. Petitioner's counsel extensively cross-examined Devasher regarding prejudice and factors impacting her ability to correctly identify Petitioner. Devasher had been a 47th Street Crip since she was a teenager. Devasher admitted she had been drinking the entire weekend before the shooting, had not slept the night before, used marijuana or cocaine that evening, and was not wearing her glasses. However, Devasher had known Petitioner since they were young and living in the same apartment complex. Therefore, Devasher identified Petitioner based upon her personal knowledge of him. At an evidentiary hearing regarding Petitioner's motion for a new trial, Devasher recanted. Devasher testified at the evidentiary hearing that she falsely identified Petitioner as the shooter because she felt pressured by the investigating officer.
In addition to Devasher's eyewitness identification, the prosecution introduced evidence Petitioner's car was found parked in a lot across the street from the crime scene, with the hood still warm. Also, investigators found a white athletic sock at the scene the following day, near the driver's door of Petitioner's car, which contained gunshot residue on its interior surface. The prosecution introduced evidence of an incident, two years before the shooting, when police officers found Petitioner in possession of a handgun inside a white athletic sock.
The jury found Petitioner guilty of first degree murder and personal use of a firearm. The trial court sentenced Petitioner to 50 years to life in prison. The trial court denied Petitioner's motion for a new trial. The appellate court affirmed his conviction.
Magistrate Judge Adler correctly identified the legal standard for a petition under 28 U.S.C. § 2254. Petitioner is entitled to relief only upon a showing that he is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. Petitioner must demonstrate the state court's decision, rejecting his claim of ineffective assistance of counsel and erroneous admission of evidence, was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . ."
Petitioner contends his trial counsel's representation was constitutionally ineffective in three respects: (1) counsel failed to obtain a gunshot residue test that "could have raised a reasonable doubt that Mr. Rountree was the perpetrator;" (2) counsel failed to obtain an expert in eyewitness identification to testify regarding Devasher's mental state and the effects of taking/not taking Thorazine; and (3) counsel failed to obtain a weather expert to testify regarding the relationship between the weather conditions and warmth of the hood of the car. Petitioner also argues the trial court erred in admitting two pieces of evidence at trial: a knotted sock, containing gunshot residue, found on the ground near the driver's side of his vehicle which was parked a block and a half from the crime scene; and (2) a prior incident where police officers found him in possession of a handgun in the door of his car wrapped in a sock. Magistrate Judge Adler determined each of these claims lacked merit.
A. Ineffective Assistance of Counsel
Magistrate Judge Adler correctly identified the clearly established federal law to be applied to Petitioner's ineffective assistance of counsel claims. Under clearly established U.S. Supreme Court law, to establish ineffective assistance of counsel, Petitioner must show: (1) "counsel's representation fell below an objective standard of reasonableness"; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 690, 692 (1984). The Court must review counsel's performance deferentially. Additionally, a wide measure of deference must be given to counsel's tactical decisions. Indeed, Strickland notes that "counsel's tactical decisions are virtually unchallengeable." Strickland at 690; see also, Furman v. Wood, 190 ...