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McClish v. Evans

August 21, 2009

KENNETH W. MCCLISH, PETITIONER,
v.
MIKE EVANS, WARDEN, RESPONDENT.



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

ORDER

Petitioner Kenneth W. McClish, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). Pending before this court are McClish's petition for a writ of habeas corpus, Respondent Mike Evans's answer, Lodged Documents 1-27, the Findings and Recommendations of the magistrate judge, and McClish's objection to those findings. For the reasons discussed below, McClish's petition is DENIED.

Facts and Prior Proceedings

On May 17, 2005, McClish was convicted by a Sacramento County Superior Court jury of second degree murder (Cal. Pen. Code § 187(a)), attempted murder (Cal. Pen. Code §§ 664, 187(a)), and being a felon in possession of a firearm (Cal Pen. Code § 12022(a)(1)). Lodged Doc. 1. He was sentenced to a total of 117 years to life in prison under California's "three strikes" law, with individual sentences of 45 years to life for murder, 30 years to life for attempted murder, and 25 years to life for being a felon in possession of a firearm, along with multiple sentencing enhancements for his prior convictions. Lodged Doc. 1. McClish is currently serving this sentence in Salinos Valley State Prison.

A.

Following his conviction, McClish filed a direct appeal with the California Court of Appeals, Third Appellate District. In its decision affirming the judgment, dated October 19, 2006, the Court of Appeal summarized the relevant facts as follows:*fn1

In August 2003, Demarkas [King], his wife Tamica, and their small daughter lived on Sky Parkway in Sacramento County. Ralph [King] and McClish lived in separate apartments at 5218 Martin Luther King Boulevard in the City of Sacramento, a bit north of Fruitridge Road; McClish lived with his girlfriend Lisa Knestrict and her aunt Betty Patterson, among others. Ralph's and McClish's building was about 600 feet from a Taco Bell at the corner of Martin Luther King Boulevard and Fruitridge Road; an open field separated the two buildings.

On August 17, 2003, sheriff's deputies came to Demarkas's apartment in response to a call. Tamica said that Demarkas, who was not there, had been in a fight. Demarkas did not contact the authorities. He later told the police, however, that after he heard banging on his front door and opened it, Michael Washington and others burst in and beat him up, then left.

According to Thomas Ogle, Jr., the 17-year-old stepbrother of Tamica, while visiting the King family in the summer of 2003 he saw Ralph buy a black semiautomatic handgun, then later show it to Demarkas. In a police interview Ogle said the purchase took place the weekend before the charged crimes, but he testified that it might have been around July 4 because he remembered the Kings had had a barbecue.

According to Betty Patterson, on August 19, 2003, she overheard Demarkas and Ralph talking outside Ralph's building. Demarkas said the police had learned of the assault on him but did nothing. Ralph said he did not want his family treated like that.

On the morning of August 20, 2003, Patterson overheard Demarkas and Ralph talk about getting a gun. Ralph told Demarkas: "We have one gat, and we need another one." Demarkas said he knew where to get another one. Ralph said he would not let his family be disrespected, and Demarkas's attackers "didn't know who they were dealing with."

Before August 20, 2003, Patterson heard McClish tell boys in the building that he had a gun; the boys later told Patterson they had seen it. McClish's girlfriend Lisa Knestrict testified that in July 2003 she discovered a black gun under the mattressFN3 on McClish's side of the bed and told him to get rid of it; he said he would.

FN3. McClish was arrested on August 26, 2003. He told Knestrict before his arrest that his brother Rick had removed the gun from the apartment, but Knestrict was not sure whether McClish said so before or after the date of the crimes.

Patterson told the police that she saw McClish's brothers remove a gun from under his mattress on August 25. At trial, however, she testified she heard this had happened but did not see it.

At 10:21 p.m. on August 20, 2003, Demarkas called the sheriff's department from work to report that someone was kicking his apartment door while his wife was at home. The department responded to the call at 10:56 p.m., but found no evidence of a crime and left without filing a report.

According to Patterson, McClish told her on the night of August 20 that Demarkas had called and would come over. Demarkas arrived around 11:00 p.m. and asked Patterson if McClish was home. As Patterson sat on a bench outside, she overheard Demarkas tell Ralph that "the guys were at Taco Bell" and "[w]e need to get over there now." Demarkas went upstairs and came backFN4 down with McClish, who carried a gray sweatshirt rolled up under his arm. Patterson and Jermal Lee, a teenage resident of the building, saw Demarkas or Ralph walking with McClish at the rear of the building.

FN4. Knestrict fell asleep that night at 9:30 p.m. She heard someone come to the door asking for McClish, who left the bedroom. McClish told her later it was Demarkas who had come to the door.

At around 11:30 p.m., Michael Washington and Allen Qualls were sitting in a primer-gray 1972 Chevrolet Nova in the Taco Bell drive-through at Martin Luther King Boulevard and Fruitridge Road. Qualls was the driver, Washington the passenger.

Taco Bell employees and customers saw a man walk up to the Nova's passenger side, appear to speak, then pull out a black long-barreled gun and fire into the car. A second man was standing in the drive-through lane two cars behind the Nova. After pausing and looking back at him, the shooter fired more shots into the Nova. The two men then hopped over a concrete wall behind the restaurant.

Eyewitnesses subsequently identified the shooter in photo line-ups and in court as Demarkas. They could not identify the second man, but described him as a heavy-set Black man around 5 feet 8 or 9 inches tall; two witnesses said he was wearing light or khaki shorts.FN5

FN5. The police later found khaki shorts and a gray sweatshirt in Mclish's bedroom. At the time of the crimes, McClish, who stood 5 feet 9 inches tall, weighed 225 pounds.

The Nova pulled into a nearby gas station, where Qualls collapsed. Taken to University of California at Davis Medical Center, he was declared dead from a gunshot wound to the abdomen. Washington was operated on for lung damage from a gunshot that struck him in the back and shoulder. Investigating officers found six spent shells near the drive-through window and a projectile and bullet fragments inside the Nova. Another projectile was removed from Washington during surgery. A ballistics expert opined that the shells and projectiles were fired from the same nine-millimeter gun, at least some while the Nova

FN6 was moving forward. No weapons or ammunition were found in the Nova.

FN6. The police found baggies of marijuana in a paper bag in the car and $700 in cash on Washington. The prosecutor suggested Washington had been planning to sell marijuana at the Taco Bell. Betty Patterson and Jermal Lee, in separate positions outside their building, heard four or five shots from the direction of the Taco Bell. Patterson then saw three people climbing over a fence, heading toward the building from the nearby field. She recognized Ralph and Demarkas; the third, whose face she could not see, was wearing a gray sweatshirt like the one McClish had on when Patterson saw him in his bedroom soon after.

According to Patterson, Ralph took a handgun out of his waistband and unloaded some shells, while saying, "We do this gangsta style." Ralph then said he was going to have a drink to calm his nerves and headed to his apartment. In subsequent days he repeated that he would not let anyone disrespect his family.

Lee testified, as he had told an investigator for the district attorney's office, that after hearing shots he saw Ralph and McClish walking from the field toward the building, then saw Ralph unload the gun as he said, "they should not mess with my family." However, Lee also testified, as he had told McClish's former attorney, that McClish was with him outside the building when the shots were fired, and it was Ralph and Demarkas whom Lee saw coming toward the building.

After the shooting, Demarkas drove to Oakland, then to San Diego. He crossed the border into Mexico, but was arrested on a murder warrant as he tried to re-enter the United States.

In custody, Demarkas was interviewed on videotape on August 28, 2003, by Sheriff's Detective Charles Husted. Portions of the ...


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