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Gilmore v. Cate

September 8, 2009

JOSHUA MARK GILMORE, PETITIONER,
v.
MATTHEW CATE,*FN1 RESPONDENT.



ORDER

Petitioner is a California prisoner proceeding with an application for writ of habeas corpus under 28 U.S.C. § 2254. He challenges two 2006 Sacramento County convictions for attempted murder. He is serving consecutive terms of life imprisonment with the possibility of parole along with a term of seven years.

I. Background

On direct appeal, the California Court of Appeal summarized the facts presented at petitioner's trial as follows:

In November 1997, Clint and Alice Durkee were living in a duplex in Sacramento with defendant Gilmore. Gilmore was a member of the Church of the Creator (CC). Living nearby were other CC members and members of a related group called the Western Hammerskins. The CC and the Western Hammerskins are both "Skinhead" gangs, i.e., racist organizations promoting White supremacy and hatred of Jews and nonwhites. These gangs liked to go "mobbing" which meant going out looking for fights. The White Supremacist Skinheads were rivals with, and held great animosity towards, an anti-racist Skinhead gang called the Skinheads Against Racial Prejudice, or SHARP.

The Almon Incident On July 3, 1997, 16-year-old Jeffrey Almon left his house to visit a friend, when he was approached by Gilmore and Richard Molinare. Desiring to avoid them, Almon walked across the street, but the two men pursued him in a "jalopy" type car, where they confronted him in a parking lot.

One of the men got out of the car and said to Almon, "What are you running from, are you a SHARP?" Familiar with SHARPs and Skinheads, Almon answered "No, I'm not a SHARP, I'm a human being." The man then replied, "Well, then, why do you look like one?" At that point, the two men assaulted him.

One of the men held Almon's arms while the other repeatedly punched him in the chest, stomach, and face. Almon then fell to the ground, and felt a "tremendous blow to the back of my skull." He was kicked repeatedly until he lost consciousness. As a result of the attack, Almon lapsed into a coma, suffered severe brain injury, and incurred substantial damage to his face and neck. He was unable to walk unassisted, had total short-term memory loss, and suffered impaired ability to communicate.

In May of 2000, Almon selected Molinare's photo from a lineup card, but he could not identify Gilmore. However, at the preliminary hearing in this case, Almon positively identified Gilmore as the other attacker.

Molinare testified for the prosecution as part of a plea agreement regarding this case and other pending charges. Admitting his own involvement in Almon's beating, he testified that Gilmore participated with him, kicking the victim several times in the head, throat and torso.

Alice Durkee testified that on the day of the Almon beating, her husband Clint informed her that Gilmore and Molinare had just beaten someone up. He directed her to a church parking lot, where they discovered Almon lying motionless on the ground. Durkee's husband called 911 from a pay phone. Later that evening, Durkee overheard a conversation among Molinare, Gilmore, and an unidentified third party, describing how Molinare and Gilmore had chased and beat up a suspected member of SHARP, kicking the victim even after he lost consciousness.

Stevanie Coppedge, who knew both Gilmore and the Durkees, testified that Gilmore admitted to her that he had chased and beaten a kid whom he thought was a SHARP member.

The Cyber Café Incident On the evening of November 1, 1997, Skinheads Michael Lee Underwood, Billy Johnson, and Ryan Yourkvitch were hanging around the Cyber Café when they got into a fracas with Joe Bailey, who was acting informally as a security guard, over Yourkvitch's refusal to pick up a cigarette butt he had tossed on the ground. A week before, a Skinhead had been roughed up by several SHARPs at the café. During the present encounter, Yourkvitch asked a patron of the café if he was SHARP. Bailey intervened, telling Yourkvitch this was not the place for politics.

The three Skinhead youths left the café and returned to Melissa Merrill's residence, where they were joined with others, including Gilmore. Johnson announced that he had been "jumped" by SHARPs at the Cyber Café, which angered the group. Gilmore said if any of the guys who "started the problem" was still there, one of them was going to die. The youths piled into three cars and headed for the café. Gilmore carried a folding knife with a four-inch blade.

After the cigarette encounter, Bailey went to a 7-Eleven store where he bought food and drink with William Harris. They noticed two cars driving by. Bailey recognized three of the men in the car as those with whom he had the hostile encounter and told someone to call the police.

As Bailey and Harris headed toward the café, they were approached by a large group of Skinheads emerging from their vehicles. One of the Skinheads said "who is it?" Another answered, "That's him" and pointed at Harris. At that point "all hell broke loose." Several Skinheads attacked Bailey, while the rest attacked Harris. Bailey was hit and kicked multiple times. Harris was hit on the head, and stabbed repeatedly by Gilmore. Harris's wife began screaming, and the assailants fled.

After the attack, witnesses observed Gilmore with a bloody knife in his hand, saying "I shanked that fool 17 times," and "I shouldn't have shanked that motherfucker." Gilmore was subsequently overheard saying he drove Johnson's car to San Francisco immediately after the Cyber Café attack so he would not be associated with the incident.

Emergency personnel responding to the scene counted 10 separate stab wounds on Harris's body. He was hospitalized for five days with a collapsed lung. At the time of ...


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