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Howard v. Cate

January 22, 2009

JELANI KITWANA HOWARD, PETITIONER,
v.
MATTHEW CATE, HEAD OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS, RESPONDENT.



PETITION FOR WRIT OF HABEAS CORPUS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Petitioner Jelani Howard, through his counsel, files this Petition for Writ of Habeas Corpus. By this verified petition petitioner alleges as follows:

I.

Petitioner is unlawfully confined by the California Department of Corrections pursuant to a judgment of the Superior Court for Sacramento in People v. Howard, No. 99F10330.

II.

Petitioner was convicted of murder, attempted murder, two counts of battery of a co-habitant, assault with a deadly weapon and a prior conviction allegation. Allegations that he personally fired a weapon with respect to the murder and attempted murder offenses were found true. In connection with the count one charge, the trial court sentenced petitioner to a 25 year to life term and then doubled it pursuant to California's "two-strikes law" based on the prior conviction which had been found true. The court added a 25 year-to-life term for the firearm enhancement found true in connection with count one and a 25 year-to-life term for the firearm use allegation found true in connection with count two. The court imposed an upper term of nine years on the count two attempted murder, then doubled it under the two strikes law for a total of 18 years. The court added a one-third the middle term of one year (doubled to two years) for each of the charges in counts four and five. The court stayed sentence on the count three charge, and added a five year term for the serious felony prior conviction. The total term imposed was 27 years in determinate sentencing time, plus four consecutive 25 year-to-life terms.

III.

Petitioner pled not guilty. He was tried by jury.

IV.

Petitioner appealed his conviction to the California Court of Appeal, Third Appellate District. The appellate court affirmed the convictions, but found the state had presented insufficient evidence of the prior conviction allegation. People v. Howard, 2003 WL 361247, *11-12 (2003). The case was remanded back to the Superior Court for re-sentencing. Mr. Howard's Petition for Review to the state supreme court was denied on April 30, 2003. People v. Howard, S114565, Order of April 30, 2003, attached as Exhibit A.

V.

The trial court re-sentenced Mr. Howard without resort to the two-strikes law on December 19, 2003. CT II 5. Mr. Howard appealed. The appellate court vacated the sentence and remanded the case for re-sentencing again. People v. Howard, 2005 WL 40034, *2 (2005). Mr. Howard's Petition for Review to the state supreme court was denied on March 23, 2005. People v. Howard, S131464, Order of March 23, 2005, attached as Exhibit B.

VI.

The trial court imposed sentence a third time on August 12, 2005. The court imposed a 25 year-to-life term for the murder. RT III 14. The court added a 25 year-to-life term for the firearm enhancement found true in connection with count one, and a 25 year-to-life term for the firearm use allegation found true in connection with count two. RT III 14-15. The court imposed a consecutive upper term of nine years on the count two attempted murder, added consecutive one-third the middle terms of one year for each of the charges in counts for and five and imposed a concurrent three-year term on the count three charge. RT III 15. The total term imposed was 11 years in determinate sentencing time, plus three consecutive 25 year-to-life terms. RT III 15-16.

VII.

Mr. Howard timely filed a Notice of Appeal. 1 CT III 57. The appellate court affirmed the sentence on October 11, 2006 and the state supreme court denied review on December 20, 2006. People v. Howard, 2006 WL 2912544 (2006); People v. Howard, S147895, Order of December 20, 2006, attached as Exhibit C. The time within which to seek certiorari expired 90 days later, on March 19, 2007.

TIMELINESS ALLEGATIONS

VIII.

This petition is timely pursuant to 28 U.S.C. § 2244(d). The following facts now known to petitioner support this claim:

a. The state appellate court remanded the case twice for resentencing. The case did not become final until (and the one-year statute began to run on) March 19, 2007.

b. Mr. Howard had a "properly filed application for State post-conviction . . . review" pursuant to 28 U.S.C. § 2244(d)(2) pending in the state superior, appellate and supreme courts from April 10, 2007 through February 13, 2008. His one-year statute ran for 22 days (from March 19, 2007 until April 10, 2007) until it was tolled by operation of 28 U.S.C. § 2244(d)(2).

c. The statute began to run again on February 13, 2008 -- when the state supreme court denied the state petition Mr. Howard had pending there. At that point, he had 343 days left in his one-year period (365 - 22 = 343).

d. On February 13, 2008, Mr. Howard had 343 days within which to file his federal habeas petition -- or until January 22, 2009.

EXHAUSTED CLAIMS

IX.

As to the matters raised in paragraph X-XII of this petition, no other petitions for writ of habeas corpus have been filed. Petitioner has no adequate remedy at law.

X.

Petitioner's judgment of conviction has been unlawfully and unconstitutionally imposed in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. The trial court violated Due Process when it allowed the state to introduce prior bad acts evidence and instructed the jury it could use that evidence to determine whether petitioner honestly and reasonably believed in the need for self-defense. The following facts now known to petitioner support this claim:

a. Petitioner Jelani Howard was charged with the murder of Lamonte Hammond and the attempted murder of Chico Stokes arising out of a February 19, 2000 shooting. CT 184-185. Mr. Howard admitted the shooting, but claimed he fired in self-defense.

b. In order to rebut this defense, and over objection, the state introduced evidence of two uncharged acts of violence involving Mr. Howard, both occurring years earlier. Neither of these uncharged offenses involved a claim of self-defense at all.

c. At the time, of the February 19, 2000 shooting, Mr. Howard was living in San Francisco, California and attending San Francisco City College. RT 976. He was dating Aretha Armstrong who lived in Sacramento, California. RT 976.

d. On February 18, 2000, after finishing math class, Mr. Howard took the bus to Sacramento to see Aretha. RT 976. Although Mr. Howard owned a car his grandmother had bought him, he was taking the bus because Aretha had crashed the car several weeks earlier. RT 977. Aretha was going to use her tax return money to pay for the repairs. RT 980. Aretha told Mr. Howard that the tax return check had arrived. RT 982. When he arrived in Sacramento, they went to a bank to cash the check and then watched movies together at Aretha's apartment. RT 984.

e. The next morning, Aretha asked if she could have some of the money back she had given Mr. Howard for the car repairs because it was her son's birthday and she wanted to buy him something. RT 985. Ultimately, they got into an argument, Mr. Howard slapped Aretha and she went to a friend's house. RT 985-987.

f. About 11 p.m. that night, Mr. Howard went to find Aretha at her friend Kelly Clark's apartment. RT 993. He was planning on heading back to San Francisco and wanted to give Aretha the money she had asked for. RT 992-993. Outside the apartment, Mr. Howard heard loud music. RT 1003.

g. Mr. Howard knocked on the door. RT 1003. Kelly opened the door and said Aretha was not there. RT 1003. Mr. Howard asked where she was. RT 1003. Kelly walked away from the open door; Mr. Howard walked inside because he wanted to find Aretha, give her the money and then go. RT 1004, 1006.

h. Kelly's boyfriend Lamonte Hammond was inside the apartment sitting at the dining room table. RT 1004. As Mr. Howard came into the apartment, Mr. Hammond said "What's up? She's not here." RT 1004. Hammond seemed "confrontational" and was wearing the color blue which was a Crip color. RT 1005, 1012. Mr. Howard admitted that in the early 1990's he belonged to the Bloods gang or East Side Piru. RT 1041. At the time of trial, however, he had not been a gang member for several years. RT 1041.

I. Mr. Howard also saw Larry Holliman or C-Crazy sitting in the livingroom. RT 1007. He was looking at Mr. Howard in a menacing way or "mad-dogging" him. RT 1007-1008.

j. Hammond got up from the table and said "what's up motherfucker, she's not here." RT 1011. His tone of voice told Mr. Howard "there was going to be a problem." RT 1011. Another man, Chico Stokes, was standing to Mr. Howard's right. RT 1012.

k. Hammond walked towards Mr. Howard with Kelly standing between them, pushed Kelly aside and lifted his shirt, revealing a gun in his waistband. RT 1016. Believing that Hammond was going to shoot, Mr. Howard grabbed the gun from him. RT 1017. Hammond asked what Mr. Howard was "gonna do" and moved towards him. RT 1017. Mr. Howard pulled the trigger but nothing happened, he pulled it several more times and the gun went off. RT 1018.

l. Hammond fell to the floor. RT 1018. Mr. Howard did not shoot Hammond again after he fell to the ground. RT 1082. Hammond died at the scene. RT 561.

m. Mr. Howard saw Stokes coming towards. RT 1018. Stokes grabbed Mr. Howard's arm and Mr. Howard shot him once. RT 1019.

n. Prosecution witness Orlando Johnson confirmed that Stokes grabbed Mr. Howard's arm before he was shot. RT 636. Sacramento sheriff's deputy Will Bayles also confirmed that Stokes later told him in the hospital that he "tried to fight the guy who had the gun." RT 967.

o. Mr. Howard could not "believe" what just happened. RT 1022. He did not feel like he had an opportunity to escape once he grabbed the gun from Hammond and Hammond continued moving toward him. RT 1144. Because he did not consider himself a "killer," Mr. Howard then put the gun in his own mouth and pulled the trigger. RT 1023. The gun did not go off. RT 1023.

p. Ron Wilson lived across the street from where the shooting occurred. RT 1146. After hearing several gunshots that night, he saw a man outside the complex place gun in his mouth and pull the trigger. RT 1146. The gun did not go off. RT 1146.

q. The state's theory was that the shooting was not in self-defense, but was a premeditated killing.

r. In light of the two theories presented, and Mr. Howard's admission that he did the shooting, the trial court recognized the only issue in the case was petitioner's intent. RT 98-99. "[Did] defendant . . . have the actual belief in the necessity to defend?" RT 98. The prosecution proposed to use other crimes evidence -- drive-by shootings from 1992 and 1995 -- on the issue of intent and to rebut Mr. Howard's claim of self-defense or imperfect self-defense by showing "he's been violent in the past, the aggressor in the past." RT 69; CT 145-146. Defense counsel argued that the 1992 and 1995 drive-by shootings were so dissimilar that the evidence "has absolutely no relevance to his state of mind" in the February 2000 shootings. CT 175.

s. Prior to the state's presentation of the prior bad acts evidence, the court instructed the jury:

"You are about to hear evidence that the defendant may have committed crimes other than that for which he is on trial. This evidence, if believed, . . . may be considered by you . . . if it tends to show the existence of the specific intent which is a necessary element of the crimes charged in Counts One and Two, whether the defendant had an actual belief in the necessity to defend himself, or whether the defendant had an actual and reasonable belief in the necessity to defend himself." RT 1154.

t. With respect to the 1992 gang-related drive-by shooting, the state presented evidence showing that in 1992, Mr. Howard fired three shots at a Crips gang member in another car and later pled guilty to assault with a deadly weapon. RT 1029, 1156-1166.

u. With respect to the 1995 gang-related drive-by shooting, the state presented evidence that in 1995 Mr. Howard fired several shots from a car, wounding Karamel Haynes. RT 1259-1274, 1302, 1309.

v. The trial court permitted the state to introduce this evidence over objection and instructed the jury it could rely on these prior violent acts in assessing whether Mr. Howard was acting in self-defense on the night of February 19, 2000. RT 98-100; 1154.

w. On appeal, petitioner contended the trial court's actions violated his federal constitutional rights to Due Process and a fair trial. Petitioner raised this claim on appeal in state court and presented it to the state supreme court as well.

XI.

Petitioner's judgment of conviction has been unlawfully and unconstitutionally imposed in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. The trial court's joinder of counts violated the federal constitution because it prejudiced petitioner's right to a fair trial . The following facts now known to petitioner support this claim:

a. Petitioner incorporates by reference all factual allegations set forth above.

b. On January 14, 2002, Mr. Howard was charged with two separate sets of crimes. The state alleged that on October 6, 1999, Mr. Howard committed the crimes of assault with a deadly weapon (count four) and battery on a co-habitant (count five). CT 185. The state also alleged that on February 19, 2000, Mr. Howard committed the crimes of murder (count 1), attempted murder (count 2) and battery on a co-habitant (count 3). CT 184.

c. Prior to trial, the defense moved to sever the two distinct sets of crimes. CT 132. The trial court denied the motion. RT 79-81.

d. On appeal, in state court petitioner contended that the trial court's refusal to sever counts violated his federal constitutional rights to Due Process and a fair trial. He raised this claim on appeal in state court and presented it to the state supreme court as well.

UNEXHAUSTED CLAIMS

XII.

Petitioner's judgment of conviction has been unlawfully and unconstitutionally imposed in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Based on information and belief, petitioner alleges:

a. The state failed to properly disclose, and trial counsel independently failed to discover and present, any and all evidence which would have impeached the testimony of numerous prosecution witnesses at trial, including Kelly Clark, Sherry Clark, Orlando Johnson and Larry Holliman, as well as the witnesses who testified to the prior uncharged acts of violence, including information which would show a bias on the part of these witnesses toward the prosecution. This evidence includes pending criminal charges and other impeachment evidence. Such evidence was both favorable and material, and the state's failure to disclose this evidence, and defense counsel's failure to discover and present it, violated petitioner's rights as set forth in Brady v. Maryland, 373 U.S. 83 (1963) and Strickland v. Washington 466 U.S. 668 (1984).

b. New evidence supports petitioner's claim of self-defense and undercuts the state's theory of first degree murder, including the evidence described above, and evidence showing petitioner did not bring a gun to the apartment on the night of the shooting.

WHEREFORE, petitioner prays that this Court:

1. Take judicial notice of the transcripts and court records in People v. Howard, C041099, People v. Howard, C045844, and People v. Howard, C050579;

2. Hold this case in abeyance pursuant to petitioner's contemporaneously filed "Application to Hold Pending Federal Habeas Petition in Abeyance," to permit petitioner to exhaust in state court potentially dispositive claims;

3. Should relief not be provided in state court, permit petitioner to amend his federal petition and order respondent to file and serve a certified copy of the record on appeal and show cause why petitioner is not entitled to the relief sought;

4. After full consideration of the issues raised in the petition, vacate the judgment and sentence imposed upon petitioner or, in the alternative,

5. Permit discovery and an evidentiary hearing at which petitioner may offer proof concerning the allegations in this petition; and

6. Grant such other and further relief as may be appropriate.

DATED: 01/15/2009

Respectfully submitted,

CLIFF GARDNER LAZULI WHITT Attorney for Petitioner

VERIFICATION

I, Cliff Gardner, declare that I am an attorney for petitioner Jelani Howard. I make this verification for petitioner because of his absence from the county where I have my office. I have read the attached petition and, except for those matters alleged in information and belief, I believe the matters stated therein to be true. On that basis, I allege they are true.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 15th day of January, 2009 at Oakland, California.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...


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