FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent argues that the petition is untimely and also has no merit.
I. Timeliness of the Instant Petition
Petitioner was charged with the murder of Mwasi Amar Dennis and the intentional discharge of a firearm causing great bodily injury. The charging document also alleged that petitioner had suffered a prior serious felony conviction. CT 6-8. Petitioner was found guilty of the murder and the firearm enhancement and the prior conviction allegation were found to be true. CT 5, 205-207, 241. He was sentenced to state prison for a total term of seventy-five-years-to-life. CT 241. He filed a notice of appeal on September 28, 1999. CT 244-245.
On August 4, 2000, appellate counsel filed an opening brief in the Court of Appeal. Lodged Doc. (Lodg. Doc.) 5.*fn2
On December 5, 2000, while the appeal was pending, petitioner filed a petition for a writ of habeas corpus in the superior court, alleging that counsel was ineffective for two reasons: he failed to call Barbara Dixon and Denise Cooper as alibi witnesses and to present a receipt and video surveillance supporting the alibi; he failed to object to jury misconduct after Denise Cooper reported seeing the jurors, the witnesses and the victim's family together during breaks, and after the jury heard the victim's mother accuse petitioner and his family of the murder. He also alleged that appellate counsel was ineffective in failing to argue the evidence was insufficient, the conviction was based on false testimony, and trial counsel failed to call witnesses. In ground three, petitioner claimed that testimony by Jonathan Bush and Mrs. Era Marshall was false and tainted. In ground four, he claimed insufficiency of the evidence. Lodg. Doc. 11. The superior court denied the writ on December 11, 2000. Id.
Petitioner filed a second collateral attack with the superior court on January 17, 2002, again while the direct appeal was still pending. Lodg. Doc. 12. He alleged that trial counsel refused to turn over the case file at the conclusion of the trial proceedings. The superior court denied this petition on February 6, 2002. Id.
The Court of Appeal affirmed petitioner's conviction on August 13, 2002. Lodg. Doc. 9. Petitioner pursued his direct appeal to the California Supreme Court, which denied his petition for review on November 13, 2002. Lodg. Doc. 10.
Petitioner filed a third habeas petition in the superior court on December 1, 2003, raising five grounds. Lodg. Doc. 13. First, he alleged trial counsel was ineffective for failing to call defense witnesses who had been subpoenaed, failing to investigate and present exculpatory defense witness, failing to present exculpatory evidence, failing to investigate and present evidence on third party culpability and failing to investigate jury misconduct and to object that the verdict was based on this misconduct. Second, he claimed that his conviction was based on the false and perjured testimony of two witnesses, Jonathan Bush and Mrs. Marshall. Third, he argued that the evidence was insufficient because it was based on Bush's and Marshall's testimony. Fourth, the jury heard the victim's mother accusing petitioner and his girlfriend, Denise Cooper, of killing the victim. Fifth, he urged that his conviction was invalid because the trial court made several errors, which implicated petitioner's right to confront witnesses: the judge allowed a witness to respond yes or no, which prevented a thorough examination, in violation of his right to confront adverse witnesses, and he allowed a prior witness to be the interpreter for another witness. Lodg. Doc. 13. The Superior Court denied this petition on December 22, 2003. Id.
Petitioner filed the same petition with the Court of Appeal on February 3, 2004; the Court of Appeal denied the petition on February 11, 2004. Lodg. Docs. 14 & 15.
Finally, petitioner filed the same petition in the California Supreme Court on February 23, 2004; the court denied it on December 22, 2004. Lodg. Docs. 16 & 17.
The instant petition was filed on April 18, 2005.
B. The Statute of Limitations
One of the changes the Antiterrorism and Effective Death Penalty Act (AEDPA) made to the habeas statutes was to add a statute of limitations for filing a habeas petition:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post- conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
A conviction is final for purposes of the AEDPA statute of limitations at the expiration of the ninety day period for seeking certiorari. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). In this case, that ninety day period ended on February 12, 2003 and the AEDPA year began to run on February 13, 2003, to expire on February 14, 2004, absent any tolling. Fed. R. Civ. P. 6(a) (excluding the day from which the period begins to run from the calculation of the time).
The statute of limitations is tolled during the pendency of any "properly filed" state collateral attack on the judgment. Nino v. Galaza, 183 F.3d 1003, 1006-07 (9th Cir. 1999). However, a state petition filed after the limitations period has run will neither revive nor toll the statute of limitations. Jimenez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).
In Carey v. Saffold, 536 U.S. 214, 218-21 (2002), the Supreme Court held that the AEDPA statute of limitations is tolled not only between the actual filing and decision on a writ, but also during those periods between filings as a petitioner works his or her way "up the ladder" through higher courts to complete "one full round" of state court review of claims. Id. at 217, 219-20. However, in Evans v. Chavis, 546 U.S. 189, (2006), the Supreme Court directed the federal courts to determine whether a "gap" petition was delayed unreasonably, even when a state court did not deny the petition as untimely. The court suggested that a gap longer than the thirty to sixty days permitted in states with written rules for filing might be reasonable, while six months would not be. Id. at 201.
In this case, there were no significant gaps between the third Superior Court petition, filed on December 1, 2003, and the subsequent petitions in the Court of Appeal and the Supreme Court. Accordingly, petitioner is entitled to statutory tolling from December 1, 2003 until December 22, 2004, a period of 388 days. This would extend the statute of limitations to March 8, 2005; the instant petition, filed April 18, 2005, would be untimely.
However, in Houston v. Lack, 487 U.S. 266, 276 (1988), the Supreme Court held that a document is filed when it is given to prison authorities for mailing, a doctrine that has been dubbed the prison mailbox rule. See also Patterson v. Stewart, 251 F.3d 1243, 1245 n.2 (9th Cir. 2001). In this case, the certificate of service for the superior court petition filed on December 1, 2003, is dated October 16, 2003, which means that the filing date for the round of state habeas petitions is deemed to be that date. Using October 16 as the starting day, petitioner is entitled to 435 days of statutory tolling, which extends the statute of limitations to April 23, 2005. The instant petition is timely.
In 1997 petitioner and Mwasi Dennis were next door neighbors. RT 22-23, 34. Dennis kept snakes and on occasion, the snakes would come into petitioner's yard. RT 23, 34. In April, petitioner found one of the snakes in the front yard and threw it on the grass pile. RT 35-36. Dennis confronted petitioner about this snake, accusing petitioner of killing it. RT 24, 36. The argument escalated into a physical fight, with the two wrestling and exchanging blows. RT 25, 37. Although petitioner's girlfriend, Denise Cooper, was able to break up the fight, Dennis retrieved a stick from his back yard, came up behind petitioner and hit him in the head. RT 26, 38-40. Petitioner declined to press charges. RT 82.
Dennis moved out of that house about six weeks later and was in jail for a period of time. RT 27, 43. Petitioner and Cooper also moved away from that neighborhood to the Sunnyslope Apartments. RT 43.*fn3 Jonathan Bush, who knew petitioner as B or Boogie, met petitioner and Don Carter, whom he knew as Brukindo, while hanging around the Sunnyslope Apartments. RT 165, 166, 167. Bush was known as Evil or E or Little E. RT 200, 209.
In October 1998, Dennis and his cousin, Dion Adams, saw petitioner working on a car at an apartment complex around the block from Dennis's mother's house. RT 66. Petitioner held his hand up like a gun and popped it at Dennis. RT 67.
On October 29, 1998, Dennis was visiting his girlfriend. RT 89. He borrowed her car and left her house between 11:30 a.m. and 12:00 noon, saying he was going to the store. RT 90. According to Bush, he, Carter and petitioner were sitting by the basketball courts around 11:30 a.m. when Dennis (whom Bush knew as "Black") drove up in a white Escort and asked about buying marijuana. Dennis had a beer in his hand. RT 213-215. Petitioner, or perhaps Carter, said some was available on 68th Avenue. RT 169, 221. Carter or petitioner mentioned a brother or a relative with marijuana on 68th. RT 231. Dennis showed Bush and Carter the money he had for drugs. RT 216.
Dennis said he did not want petitioner in the car with him because he had been in a fight with petitioner. RT 170.*fn4 Dennis told those assembled that he had used a stick on petitioner during this fight. RT 181, 219. Petitioner said, "It's cool. I'm not tripping." RT 171-172. Petitioner went to his apartment, saying he was going to grab a sweater. RT 172, 205.
When he returned to the car, petitioner was wearing a black hooded sweat shirt, a black beanie, black jeans and cloth gloves. RT 173, 175.
Petitioner and Carter got in the back seat and Bush got in the front seat. RT 177. Bush was wearing a Pendleton shirt and a FILA beanie; Carter was also wearing a black sweater. RT 178-179. Petitioner gave directions to Dennis, who said something like "the last time I seen you, we was going to it." Petitioner replied, "It's cool." RT 180. However, as they turned onto 68th behind a truck, petitioner said, "It's not never cool," and Bush heard a gunshot. RT 181.
At first, Bush thought there had been a drive-by shooting; a white car had driven past, playing loud music. RT 183, 225. However, as the car rolled to a stop, petitioner began kicking the seat, trying to get out of the car. Bush got out and went to help Dennis out, but then realized he had been shot. Carter was crying. RT 184. They helped petitioner out of the car and then Bush saw the gun, a .380. Petitioner said, "that's what that fool gets." RT 187.
Carter and Bush started running. Petitioner started to run as well, then stopped and appeared to talk to someone, but then ran behind Carter and Bush. RT 185. Bush saw a woman he knew and hoped to get a ride, but Carter and petitioner were behind him. RT 227, 228. When they got to where the street began to curve, they ran through a yard. Carter was crying, so Bush kept urging him to run. RT 186.
When they reached the canal, petitioner said, "take that shit off," so Bush stripped off his Pendleton and beanie, Carter removed his sweater, and petitioner took off his sweater and shirt. RT 186, 188; see also RT 124-125, 136 (officers found two beanies and a black hooded sweatshirt in the canal area behind Della Circle and a Pendleton shirt on Loucreta, the street north of Della); RT 102, 104, 107, 108 (resident retrieved some gloves from her green waste container after seeing three men run through her back yard). Petitioner said, "you all better not open your mouth." RT 191, 285-286; CT 98. He also said he would concoct an alibi, that he was with his girl the entire time. RT 198.
Carter and Bush lost sight of petitioner for awhile and then saw him again by Kennedy Elementary School. RT 194. Bush and Carter got a ride from Robert Enriquez, whom Bush knew as "Big Cheese." RT 195-196. According to Bush, Carter had a radio or tape recorder with him. RT 196, 224.
Between 11:45 a.m. and 12:45 p.m. on October 29, Robert Enriquez, who was married to one of petitioner's cousins, was driving toward the Sunnyslope Apartments when two men flagged him down. RT 141. Enriquez recognized one of the men, an African-American, as "Evil," whom he had seen around the apartment complex; he did not know the other man.
RT 142.*fn5 Evil and his companion were sweaty and had been walking fast. RT 143. The other man was wearing a black hooded sweatshirt and was holding something that looked like a gun box. RT 143-145.
On October 29, 1998, Exell Marshall was pulling into his driveway on Della Circle when he heard shooting. RT 151. He and his wife Era got out of their car and onto the ground. RT 152. After the shooting, two African American men ran down Della Circle.
RT 154. Another, lighter skinned man, moved in a different direction initially, but then joined his companions. RT 155-156. This man raised his shirt and put a small black object in back of his waistband. RT 156, 368. The person who tucked something in his waistband was not the person who was wearing a plaid shirt; the man in the plaid shirt may have had gloves on. RT 160, 162, 164.*fn6
Era Marshall testified she was outside her house on Della Circle. RT 320.*fn7 From her vantage point about seven feet from the car, she saw petitioner, who was sitting in the back seat of the white car, shoot Dennis. RT 326, 329, 340. After the shooting, petitioner got out of the car first. RT 320, 345.
Mrs. Marshall said that two of the people who got out of the car came down Della Circle, while petitioner ran down 68th Street. RT 321, 322. She saw petitioner put a gun in the back waistband of his pants; she did not see Bush with a gun. RT 322, 345.*fn8 Petitioner stopped and ran toward Loucreta. RT 324.
Mrs. Marshall tried to tell police she had seen the shooting, but they did not listen to her. RT 349-350. Officer Martinez confirmed that he did not ask Mrs. Marshall whether she saw a gun or saw someone tucking a gun into his waistband. RT 473. She did indicate she saw a white or Hispanic person go towards Florinda; she touched the officer's hand, which led him to think she meant a white or Hispanic. She also said the two other, darker people had run in the same direction. RT 474. When she came to court the day before she testified, she indicated to her husband that petitioner was "the guy." RT 364.
Maria Medellin lived on Della Circle, close to 68th; around noon on October 29, she heard a loud gunshot. RT 113. She saw three young men running away; one was wearing a black beanie and a Pendleton shirt. One of the men was black, the others were lighter-skinned and could have been black or Hispanic. RT 114-115. One of the men said, "Why did you shoot him?" RT 117.
Justin Perez provided a different description of the shooting. Perez was visiting a friend on Loucreta and 68th and standing by the garage when he saw a white car go by fast and then crash into a truck. RT 424. A person in the backseat was crouched down low. RT 440. Perez went to help the driver, but realized he had been shot. RT 449. Two people ran toward Della; another walked down 68th. RT 427-428. This man had a gash in his eyebrow. RT 445. Perez knows petitioner; he did not see petitioner around the white car. RT 429.
Around noon, Officer Steven Bicks received a call about a possible shooting at 68th Avenue and Della Circle. RT 92. He arrived at the scene at 12:04 p.m. and found Dennis in the front seat of a white car, which had hit a truck. Dennis had suffered a fatal wound and was still gurgling. RT 92-94. Someone gave Bicks a black jacket with a pager that had been found in a nearby yard. RT 99.*fn9
While Detective Elaine Stevenson was at the crime scene, Don Carter Jr. and his father approached her. Carter said he was afraid to give a statement because he thought that petitioner*fn10 would find "E" so he could learn where Carter lived. RT 281, 285. He said that when they were running, petitioner was concerned that Carter would snitch, but Bush assured petitioner that he had nothing to worry about. RT 286. Carter said he was going to move to Arizona. RT 286. Later, the district attorney's investigator could not find Carter to serve a subpoena on him. RT 293-295.
Denise Cooper, petitioner's girlfriend, presented a different account of the events of October 29, 1998. Cooper was off work that day. RT 45. Petitioner left the apartment around eleven to pick up their daughter Brianna from school, as was his habit. RT 45, 46. About an hour after petitioner and Brianna returned home, the three of them went shopping, using petitioner's Cutlass. RT 48. Between the time petitioner arrived home and the time the three left to go shopping, petitioner did not leave the apartment. Id.
In October 1998, petitioner worked with Jason Fields, doing car repair. RT 371. Fields testified petitioner, his girlfriend and their children had come to his house on October 29 between 10 and 12; they stayed for about half an hour. RT 372-373. Fields saw petitioner later that afternoon, while shopping for Halloween costumes. Petitioner was in a car with other people. RT 374.
Cooper testified that around 1 p.m. they stopped at Jason's house, where they stayed an hour. RT 49. From there, they stopped in to visit petitioner's mother, Barbara Dixon. Id. After about an hour, they all went shopping until about 9:00 that evening. RT 50.
When Cooper spoke with police within weeks of the homicide, she told them that right after petitioner had dropped Brianna at home, he and Jason had gone to the wrecking yard to get some parts for petitioner's Mustang and returned home between 2:30 and 3:00 p.m.
RT 52, 54. She also told police that the family went to Dixon's home and then, as a group, they went shopping. RT 54. She testified she had the days mixed up when she spoke to the detective. RT 53. When she first spoke to the police, she did not know Dennis had been killed.
Later, when she was trying to reconstruct their activities on October 29, she got a note from Brianna's teacher, saying petitioner had picked Brianna up from school and gave it and the receipts to Dixon. RT 58, 61, 269.
According to Enriquez, when Bush learned detectives were going to talk to Enriquez, Bush asked Enriquez to say that Bush was sad and crying when they met up on October 29. RT 552. Bush also told him petitioner was not involved. RT 553. Bush countered that he did not tell Enriquez the police had the wrong guy and did not ask Enriquez to lie for ...