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 (Document 1)
Petitioner Vincent Anguiano, Jr., ("Petitioner") is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On February 5, 2004, in the Fresno County Superior Court, a jury convicted Petitioner of second degree murder by use of a deadly weapon while personally using and discharging a firearm. On May 6, 2004, he was sentenced to 15 years to life for the murder, plus 21 years for the enhancements.
Petitioner appealed to the Fifth District Court of Appeal. The court affirmed the conviction and sentence on June 22, 2005.
Petitioner filed a petition for review in the California Supreme Court, which was denied on August 31, 2005.
Plaintiff began his state habeas filings with a petition for writ of habeas corpus in the Fresno County Superior Court. The petition was denied on November 2, 2006. His petition filed in the Fifth District Court of Appeal was denied on April 5, 2007, and his petition filed in the California Supreme Court was denied on October 31, 2007.
On December 27, 2007, Plaintiff filed the instant federal petition for writ of habeas corpus in this Court. He alleges that his counsel was ineffective and that the evidence was insufficient to convict him of discharging a firearm during the commission of a felony.
Respondent filed his answer on April 9, 2008. Respondent addresses the merits of the petition, but contends that the petition was untimely filed in the first instance.
Petitioner filed his traverse on June 11, 2008.
Fresno Police Officer Michael Maguire testified that he was called to Las Chicas Bar at approximately two o'clock in the morning on March 30, 2003. RT 338. When he arrived on scene he encountered a group of people huddled around the victim, who had visible abrasions "like he had been dragged around or scuffed up," and wasn't responding. RT 340. Officer Maguire was responsible for the overall on-scene investigation. RT 343.
Justin Lozano was the security guard at Las Chicas on the night of the incident. RT 349. As he was getting ready to drive home, he noticed a "bunch" of people in his rearview mirror and got out of his car. RT 350. When he approached the group, they were arguing. Lozano asked the group to leave and about six people jumped into a truck driven by Petitioner. RT 352-353, 355-356. Petitioner began driving away "slow and steady." RT 357. As he passed the bar, someone threw a bottle at his truck. RT 357. Petitioner then "slammed on the brakes," as Martin Lupian was running across the street, towards the truck. RT 359-360. Petitioner threw the truck in reverse, crossed over one lane, traveled 40 to 50 feet, and then hit Lupian with the tailgate while traveling at about 25 miles per hour. RT 361-363. Lupian tried to hold on to the tailgate with both hands but he was pulled under the truck. RT 364. Both the front and rear tires ran over Lupian and Petitioner continued in reverse for about 5 to 10 feet. He then put the truck in drive, "burning rubber and everything," and ran over Lupian with the front tires. RT 366.
Everyone got out of the truck, while Lupian remained underneath. RT 366. Raul, one of the owners of the bar, went up to the truck and punched out the passenger side window to get a hold of the driver. RT 367, 452. It turned into a "melee" and Petitioner fought with people and pulled out a gun. RT 368. Petitioner pointed the gun at everyone and started firing. RT 369. Everyone began running and trying to hide. RT 369. A few minutes later, Raul returned with a gun and began firing at Petitioner's vehicle while he drove away. RT 371. As he left the scene, he ran over Lupian with the back tires. RT 394.
Lozano identified a picture of the truck at trial as the one involved in the incident. RT 390.
Della Ortiz, an owner of the bar, testified that Petitioner was not in the bar that night because he was not allowed in. She saw him in the driver's seat of his truck. RT 399-400. She heard a commotion and went outside, where she saw someone in Petitioner's truck arguing with a person outside the bar. RT 401. She asked Petitioner if he could "take his people" and he said he would. RT 402. Petitioner backed the truck up and drove off. RT 403. Someone threw a beer bottle at the truck and Petitioner backed up fast. RT 405. She saw Lupian put his hands on the tailgate but it knocked him down. RT 407. The truck went completely over him and then stopped. AR 407. Petitioner then put the truck in forward and drove over Lupian again, coming to a stop with Lupian under the truck. RT 408. She tried to get to Lupian and was able to pick up his head, while others tried to get the people out of the truck. RT 409. Petitioner got out of the truck and began pointing a gun at people. RT 409. He fired it two or three times up into the air. RT 410. Ortiz was certain that Petitioner was the person driving the truck. RT 412.
The third eyewitness, Raul Robles Rodrigues, testified that he was Della Ortiz's husband and co-owner of the bar. RT 425. After closing, Justin Lozano came into the bar and informed Raul that there was a disturbance outside. RT 425. He went outside and saw fighting in which Petitioner was involved. RT 426-427. He tried to break it up by firing three rounds into the air. RT 428. He never pointed the gun at anyone. RT 429. He then made Petitioner and the others get into his truck. Petitioner "burn[ed] rubber" as he drove away. RT 430. Rodrigues then saw someone throw a bottle at the truck. RT 430. The truck stopped and began backing up at a high speed and swerved across the street towards the crowd. RT 432. He did not see the vehicle hit the Lupian the first time. RT 432. Rodrigues began to run and when he looked back, he saw the vehicle run over Lupian, who was already on the ground. RT 450. He ran to the truck and broke the windshield with his fist to get a hold of the driver. RT 451-452. The car stopped and Petitioner put a gun to his face. 452. Mr. Rodrigues ran and Petitioner began to point the gun at everyone. RT 453. He saw the vehicle go over Mr. Lupian a third time as Petitioner drove away. RT 456.
Fresno Police Detective Michael Harris testified that he was the lead investigator in this incident. RT 467. He apprehended Petitioner later that morning. He also found the gun that Petitioner said he used during the incident. RT 467-469. He found the truck backed into a corner of the property. RT 473. The rear tire did not match the other three and there was a bullet hole just above the rear portion of the quarter panel. RT 476. Petitioner told Detective Harris that the tire had been "shot out." RT 477. Detective Harris noticed "some smudging or markings of some kind" on the tailgate and said that it looked like a handprint at one time of someone who was gripping the tailgate "to avoid a collision" but then slipped in a downward motion off to the right. RT 478-479. There were also some scrape marks on the undercarriage which gave "the appearance of something that was recently run over." RT 488.
Detective Harris further testified that he interviewed Petitioner after his arrest. RT 493. A tape of the recorded interview was played for the jury. During the interview, Petitioner said that he pulled into Las Chicas Bar and Della, who was outside, began yelling at him. Petitioner started to leave and someone hit his truck with a bottle. He stopped the truck, everyone got out and a fight started. He said that he didn't shoot at anyone and shot up in the air twice. He said "that guy" was just laying by the truck and that someone else must have hit him because Petitioner never touched him. He also denied backing up the truck, but later said he backed up a little. RT 498-536.
On cross-examination, Detective Harris indicated that he did not find any clothing fibers, hair, skin or blood on the underside of the truck. RT 547. He also indicated that fingerprint testing was done, but because the impression was smeared, they could not determine who the prints belonged to. RT 603.
Venu Gopal, who conducted the autopsy, testified that the cause of death was complications of chest and abdominal trauma due to blunt impact. RT 721.
Jasmine Lopez, called on behalf of Petitioner, testified that he gave her a ride on the night of the incident. When they arrived at the bar, Petitioner got out and an argument started with people outside the bar. RT 677. Petitioner got back into the truck, put it in reverse and heard a loud noise, which turned out to be the window shattering. RT 678. The glass hit her face and she believed a bullet hit her leg. RT 680-681. ...