The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 7]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On May 7, 2003, following jury trial in the Stanislaus County Superior Court, Petitioner was convicted of attempted murder (Cal. Pen. Code §§ 664/187, count one),*fn1 shooting at an occupied dwelling (§ 246, count three), assault with a firearm (§ 245(a)(2), count four), and possession of a firearm by a felon (§ 12021(a), count five).*fn2 It was further alleged that during the commission of count one, Petitioner intentionally and personally discharged an assault rifle within the meaning of section 12022.53(c); as to count one and counts three through five, it was also alleged that Petitioner personally used a firearm within the meaning of section 12022.5.
Petitioner was sentenced to twenty-nine years and eight months in state prison.*fn3 (CT 219-222, 238.)
Petitioner filed a timely notice of appeal to the California Court of Appeal, Fifth Appellate District. (Lodged Doc. No. 1.) On April 16, 2004, the Court of Appeal affirmed the judgment. (Lodged Doc. No. 3.) On May 3, 2004, the Court of Appeal modified the opinion in a manner that did not affect the judgment. (Lodged Doc. No. 4.)
Petitioner filed a petition for review in the California Supreme Court on May 18, 2004. (Lodged Doc. No. 5.) The petition was denied on June 23, 2004. (Id.)
On or about November 5, 2004, Petitioner filed a petition for writ of habeas corpus in the Stanislaus County Superior Court. The petition was denied on November 15, 2004. (Lodged Doc. No. 6.)
On February 9, 2005, Petitioner filed a petition for writ of habeas corpus in the Fifth District Court of Appeal. The petition was denied on February 24, 2005. (Lodged Doc. No. 7.)
On March 28, 2005, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on February 22, 2006. (Lodged Doc. No. 8.)
Petitioner filed the instant federal petition for writ of habeas corpus on September 28, 2006, and a first amended petition on November 9, 2006. (Court Docs. 1, 7.)
Respondent filed an answer to the amended petition on January 19, 2007. (Court Doc. 13.) Petitioner did not file a traverse.
In October 2001, Watkins lived at 3204 Doris Court, in Modesto, California, at a home that was owned by his ex-girlfriend, Polly Latino. Watkins had lived at the home for approximately 12 to 13 years. (RT 65-67.) Jack Blood was also living in the home with Watkins. (RT 68.) Ms. Latino had moved out of the home after their breakup. Watkins made the mortgage payments until he encountered financial difficulties and had failed to pay the rent for a couple months.
Sometime in June of 2001, Watkins telephoned Latino regarding the late mortgage payments. David Ramos answered the telephone and advised Watkins to pack up and leave the house. Watkins told Ramos it was none of his business. (RT 77-78.) Latino thereafter initiated eviction proceedings. (RT 69-70.) Sometime in July or August of 2001, Ramos and another unidentified person served Watkins with eviction papers. (RT 69-72, 95-96, 99, 148.) Thereafter, in September 2001, Watkins observed Ramos drive by the home and take a photograph of him cleaning up the front yard. Watkins followed the car and after it stopped, Ramos and Watkins "exchanged words,"during which time Ramos was "belligerent" and "angry." (RT 79-93.)
On October 1, 2001, Watkins had been out during the day and returned home at approximately 9:30 p.m. (RT 100-103.) As he was getting ready for bed the front doorbell rang. (RT 105.) At that time, the front door open, however, the steel-mesh security door covering it was closed. (RT 104-109.) Watkins went to the front door and immediately noticed Ramos who was "prancing" around. (RT 111-112.) Ramos appeared to be "agitated and very nervous." (RT 110-111.) Watkins asked Ramos what he was doing there, and he replied "Why don't you come on outside." (RT 111.) Ramos was holding an object which Watkins believed to be a billy club. (RT 112-115.) Watkins observed "a shadow" of another person moving about 15 feet away in his right field of peripheral vision. (RT 118-120, 146-147, 167, 170-171, 176, 352-353.) However, Watkins could not identify Petitioner as the second shooter at trial. (RT 144.) Watkins did not go outside and instead turned around to call 911, and as he did so he "felt a blast from a shotgun and [he] went down" just inside the doorway. (RT 121-122.)
Watkins was shot several times through the security door. (RT 123-124.) The first gunshot struck him on his left side torso. (RT 122, 125.) The second struck him on his left hip and arm. The third gunshot struck him in his left torso, and the fourth struck him in his left arm and torso. (RT 124.) Watkins also heard four or five additional gunshots that did not hit him. (RT 125.) Watkins believed that he heard between eight and ten gun shots. (RT 126, 152-153.)
Watkins called for his roommate Blood to help. (RT 128.) Blood called 911 at 10:17 p.m. (RT 128, 603.) Watkins did not recall if he talked to the 911 operator, but acknowledged that it was his voice on the 911 tape recording. (RT 141-142.) An ambulance arrived a short time later and Watkins was taken to the hospital emergency room where he stayed for eight days. (RT 131, 142.) As a result of his injuries, Watkins had to undergo a couple of surgeries, and still had pellets lodged in his body. (RT 132-136, 139-141.) At trial, he testified that he still had physical limitations and was in pain. (RT 138.)
Police Officer, Jason Stewart, of the city of Modesto, responded to the home. (RT 180-181.) He followed the ambulance to the hospital, where he spoke with Watkins who told him that "Little Dave" (Ramos) had shot him at his front door. (RT 182.) He also stated that a second person was standing in the shadows near the street. (RT 183-184.) Officer, Michelle Wentink, also confirmed that Watkins indicated that "Little Dave" shot him. (RT 186-187.)
An identification technician from the Modesto Police Department, responded to the scene of the shooting on the night of October 1, 2001. (RT 358-359.) There, he recovered casings from a 7.62 by 39 caliber bullet (two of the casings were found in the gutter by the street in front right side of the house and the other two casings were found in the corner of the neighbor's yard) (RT 361-367) and "numerous" empty and expended 20-gauge shotgun shells in the front door (RT 368-370, 376-377). He observed that the inside of the hallway to the residence had been torn by the impact from the lead of the pellets. (RT 371.) He retrieved a shotgun wadding from the inside of the front door.*fn4 (RT 374.)
Monique Randal, who was employed at the AM/PM Arco in Ceres in October 2001, testified that she was responsible for changing the tapes for the surveillance cameras. (RT 211-212.)
Petitioner, his wife, and their son lived with Kimberly Barela on October 1, 2001. (RT 234-235.) She stated that Ramos and Petitioner hung out together around the time of October 1, 2001. (RT 237.) In fact, she had observed Ramos and Petitioner in the car together on prior occasions. (RT 239-240.)
On October 2, 2001, the day after the shooting, Ramos telephoned Kimberly Barela and asked her to "hide something for him" and she agreed to do so. (RT 240-241.) Petitioner and Ramos arrived at Barela's residence in Ramos' car a short time later. Ramos then told Barela to remove a bag from the car's trunk and hide it. (RT 241-242, 246, 257-258.) She grabbed a blue pillowcase, that she recognized as hers, and although she noticed there was something in it she did not look inside. Instead, she took it into her house and looked after her children until Ramos and Petitioner left. (RT 246.) A few minutes later, Petitioner telephoned Barela and asked whether she had hidden the pillowcase. (RT 247, 257.) She indicated that she had not, and Ramos told her to hide it in the water heater vent. (RT 248-250.) Barela did and did not look in the pillowcase. (RT 252, 256.) Ramos was the maintenance man at Barela's apartment complex, and he had been in her apartment on a few previous occasions. (RT 248-249.)
Minutes later, Modesto Police Detective Allen Brocchini, knocked on Barela's apartment door.*fn5 (RT 252.) She initially lied about seeing or receiving any property from Petitioner and Ramos because she was nervous. (RT 252.) However, upon further questioning, she admitted she received some property from them and told Detective Brocchini it was hidden in the heater vent. (RT 254-259.) Detective Brocchini removed the pillowcase from the vent and found three boxes of Federal 20-gauge shotgun shells, four boxes of assault rifle rounds, nine-millimeter rounds, and five hundred .22 caliber rounds. (RT 310-313.)
Tiffany Steenburg testified that she knew both Ramos and Petitioner, and had been close friends with Ramos for a couple of years. (RT 315-316, 323-324, 418.) On October 2, 2001, the day after the shooting, while Steenburg was at Charlene Waterfield's home, she received a phone call from a person she could not identify who said he needed to drop something off at her home.*fn6
(RT 321-325, 404-407.) Approximately twenty minutes later, Petitioner and Ramos arrived at Waterfield's home, and Steenburgh went outside to speak with them. Steenburgh took an empty diaper bag out of the house with her, and Ramos put another bag inside the diaper bag.*fn7
Steenburgh took the diaper bag into Waterfield's home and looked inside of it, and although she acknowledged that there was "something" inside the bag, but could not elaborate further. (RT 332-333.) However, Waterfield testified that Steenburgh opened the bag and showed her the contents, which contained two gun magazines. (RT 413-414.) Steenburgh subsequently took the bag home, and at one point noticed a black metallic shape inside. (RT 332.) She ultimately placed the bag inside of a dresser drawer. (RT 334.)
A couple days later, on October 4, 2001, Detective Brocchini went to Steenburgh's home and asked her to give him what she had received. Steenburgh initially told Brocchini that she did not know what he was talking about; however, Brocchini said, "I already know what you have, David already told me." (RT 334-344.) In response, Steenburgh then went to the bedroom to get the bag from the dresser and gave it to Brocchini. (RT 335-336.) Brocchini found a fully loaded (25 rounds of 7.62 x 39 millimeter rounds) magazine for an SKS assault rifle, a loaded magazine (40) rounds for a .22 caliber rifle, and a loaded nine-millimeter hand gun. (RT 342-349.)
In an unrelated matter, on September 24, 2001, Officer Jeff Eastwood, of the Modesto city police, went to a house on Yosemite and found three expended shotgun shells, which were presented as People's Exhibit 38, at trial. (RT 419-422.)
Ronald Welsh, a criminalist for the California Department of Justice, examined the shotgun shells found by Eastwood. (RT 424-425, 431, 433-434.) He compared the shells found by Eastwood to the shells found at the scene of the shooting of Watkins and determined they were fired by the same weapon. (RT 434-437.)
Two of the shells found by Eastwood appeared to have blood on them. (RT 452-453.) Walsh used a swab to collect a sample of the blood. Walsh collected a sample and sent it to the Department of Justice laboratory in Richmond. (RT 454-458.)
Colleen Spurgeon, a criminalist at the Department of Justice's Richmond laboratory, examined the sample sent by Walsh and compared it to Petitioner's DNA sample taken from his blood and determined that the blood matched the blood found on the shotgun shells found by Walsh. (RT 465-467, 484-487, 494-500.)
Joanna Torres testified that in October of 2001, she had known Ramos for approximately three weeks to a month. Although they were "interested" in each other, the relationship had not yet become romantic. (RT 557-558.) On October 1, 2001, she was working at the AM/PM Mini Market in Ceres. (RT 559.) Ramos and another individual whom she could not recall, picked her up at that location. (RT 558-562, 575-577.) The other individual was driving Ramos' car. (RT 562, 573-574.) Torres denied telling detectives that the person with Ramos was Petitioner. (RT 566, 569, 573-574, 584.) An AM/PM store videotape revealed that Torres left the store at 10:33 p.m. after getting into the backseat of Ramos' car. (RT 211-221, 575.) All three of them went back to her apartment where they spent the night. (RT 577-578.)
At trial, Torres acknowledged that she had identified Petitioner as "G" in a photographic lineup on October 5, 2001. She indicted that she met him only once through their ...