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Jordan v. Malfi

April 9, 2009

JO'VON JORDAN PETITIONER,
v.
A. MALFI, WARDEN, ET AL. RESPONDENTS.



The opinion of the court was delivered by: Milan D. Smith, Jr. United States Circuit Judge

ORDER

Petitioner Jo'Von Jordan, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). Pending before the court are Jordan's petition for a writ of habeas corpus (Doc. 1), Jordan's supplemental memorandum of points and authority (Doc. 40), Respondent A. Malfi's answer (Doc. 41), and Jordan's response to Malfi's answer (Doc. 54). For the reasons discussed, Jordan's application is DENIED.

I.

On March 5, 2003, Jordan was convicted by a Sacramento County Superior Court jury of two counts of murder (Cal. Penal Code § 187(a)); multiple murder circumstances (Cal. Penal Code § 190.2(a)(3)); and use of a firearm for each murder (Cal. Penal Code §§ 12022.5(a); 12022.53(b), (c), and (d)). Clerk's Transcript (CT) at 363-65, 372-73. Jordan was sentenced to, and is currently serving, an aggregate term of 90 years to life in prison. CT 10, 475-76.

A.

Jordan filed a direct appeal of the judgment of conviction with the California Court of Appeal, Third Appellate District. In its decision affirming the judgment, the Court of Appeal summarized the relevant facts as follows:*fn1

[Jordan] and Timothy Traylor, who were so close they were like brothers, were both associated with the Nogales Crips gang. [Jordan] was a member, but Traylor never did become a member. On the afternoon of November 29, 2002, [Jordan] and Traylor walked to East Coast Fashion, a clothing store on Marysville Boulevard. [Jordan] was wearing jeans and a white t-shirt. While they were in the store, Hudson Augustus, who was known as "Artist," came into the store. Shortly thereafter, [Jordan's] girlfriend Tanaria Barkins and Tanaria's mother Dana Laws came into the store.

Artist and his brother Gregory, also known as "Buckeye,"were part of the Del Paso Heights Bloods, a rival gang to the Crips. [Jordan] and Traylor made a purchase and were standing near the store's exit when Artist began addressing them in a disrespectful tone. Artist said he and his brother were going to "whip" them. Traylor thought a fight was about to go down. He told Artist they did not want any problems and to keep it cool.

Traylor walked out of the store onto the sidewalk and toward a nearby pizza parlor. [Jordan] was right behind him, and Artist was already out on the sidewalk. When they were in front of the pizza parlor, Buckeye pulled his car up and jumped out. He ran up to Traylor and said something like, "what you, fuck you, talking about you don't want no problem." Buckeye made a fist. When Traylor saw Buckeye's fist, he thought Buckeye was going to hit him, so he dropped the bag of newly-purchased clothes he was carrying and prepared to defend himself in a fist fight.

As soon as Traylor dropped the bag, gunshots went off. The shots were so close to Traylor, he thought at first he had been hit. He saw Buckeye and Artist fall to the ground. He never saw [Jordan] after the gunshots. Traylor ran to the pizza parlor, but the door was locked. He yelled at them to call 911.

Willie Vains, who saw the shooting, came up and told Traylor to call 911. Traylor used his mother's cell phone to dial 911. He was disconnected, so he called it again. He talked to the 911 operator and said there had been a shooting.*fn2 Traylor saw Barkins and Laws come out of the clothing store. They went toward their car, where Laws's boyfriend, Alvin Williams, was waiting for them. Laws asked Traylor if he wanted a ride. He got in the car and they drove him home. While Traylor was in the car, the 911 operator called him back. When Traylor got out of the car, he crossed the street to see his cousin, Jibri Stepter. He told Stepter what had happened, and left the bag of clothes with Stepter before going across the street to his own house.

Traylor's mother came home, and he told her what had happened. About 30 to 45 minutes after the shooting he called [Jordan]. Both Traylor and his mother talked to [Jordan]. Traylor asked why [Jordan] had put him in such a bad position. [Jordan] said he got tired of fighting. After talking to [Jordan], Traylor's mother contacted the police, and Traylor went to the police station to be questioned.

Five eyewitnesses (other than Traylor and [Jordan]) testified. Willie Vains lived in the neighborhood and was a very close friend of the victims. As Vains was crossing the street to the pizza parlor, he saw the victims and two other men. One of the other men was Traylor, whom he described as a "tall dark skinned" man. He knew Traylor from the neighborhood, and recognized him because of his distinctive gold teeth. He was not friends with Traylor, but he knew him. Vains was a Blood and Traylor was a Crip, so he would not hang out with him. Vains testified the "shorter dude that was with Tim, he had braids, he pulled a gun out and shot Artist first." Then he shot Buckeye. The shooter ran away up Balsam. Traylor just stood there, hysterical. Vains testified the shooter had about the same complexion as Vains, or maybe a little lighter, and was wearing jeans and a white shirt. Vains remembered that Traylor had a bag in his hands, and remembered Traylor talking on the cell phone. Traylor stayed around five or six minutes, then he left.

Denise Wesley was another eyewitness. She heard the gunshots and saw a light-skinned person with a gun in his hand going north on Balsam.

James Crant, who was walking to a nearby car wash, heard the gunshots and saw a man in tan pants, a white t-shirt and black head scarf "squeezing the trigger away." The shooter was light-skinned, about 5 [sic] feet, seven or eight inches tall and weighed around 160 or 170 pounds. After the shooting, Grant saw the shooter walk around behind the pizza place down Balsam and disappear. Grant assumed the shooter got in a car and left.

Kenneth Williams was at the nearby carwash with his girlfriend Yakima Smith. Kenneth Williams talked to a police officer a few minutes after the shooting. He told the officer he saw a thin, medium-complexioned black male approximately five feet, eight inches tall wearing a white t-shirt and black or blue pants holding a gun in his outstretched hand. He said he saw the man with the gun run north on Balsam. At trial Kenneth Williams claimed he had not seen any of this, and that his girlfriend, Smith, was the one who saw it. He testified he told the officer he had seen everything because Smith did not want to get involved.

Jess Green was a witness for the defense. He saw someone come around the corner of the pizza parlor and start shooting. The shooter was six feet tall and wearing a white shirt and dark pants. He was Black, and his skin color was kind of dark, but not real dark. After the shooting, the person ran around the pizza parlor to northbound Balsam with the gun in his hand.

Neither Alvin Williams nor his girlfriend, Dana Laws, saw the shooting take place. Alvin Williams was parked across the street from East Coast Fashion, and ducked down when he heard gunshots. Laws was inside East Coast Fashion with her daughter Tanaria Barkins, [Jordan's] girlfriend. At trial all three testified Traylor pushed his way into the car after the shooting. Traylor had testified Laws asked him if he wanted a ride home. When the prosecutor and his investigator told Williams they wanted to talk to him about the shootings, he told them he wanted nothing to do with it because he had people "bothering" him. While the prosecutor was talking to him Laws was screaming "stick to your story" and "you didn't see anything."

Barkins testified Traylor pulled something from his waist band and gave it to a boy who came to meet Traylor when they dropped him off. The person who met Traylor, Jibri Stepter, testified Traylor left a bag of clothes with him, but nothing else. [Jordan] took the stand and testified he saw Traylor pull a gun out of his pocket and start shooting. [Jordan] ran as soon as the first shot went off. [Jordan] also produced as a witness Kenyatta Hudson, who testified he was acquainted with both Traylor and [Jordan]. Hudson testified that about a month after the shootings he had a telephone conversation with Traylor, and Traylor told him it was too "hot" for him because of what had just happened. However, Traylor did not tell Hudson he, rather than [Jordan], had done the shooting.

Lodged Doc. 2 (Opinion) at 2-7.

B.

On March 29, 2005, the California Court of Appeal for the Third Appellate District affirmed Jordan's conviction on his direct appeal. Opinion at 2. Jordan's petition for rehearing of his case was denied on April 15, 2005. Lodged Doc. 2 (Denial). On April 2, 2005, Jordan sought review in the California Supreme Court. Doc. 1, ...


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