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Johnson v. Sisto

September 10, 2009

O'SHAY JOHNSON, PETITIONER,
v.
D.K. SISTO, RESPONDENT.



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, challenging his 1993 Sacramento County conviction for attempted murder and other offenses. Respondent has filed a motion to dismiss, alleging that the action was filed beyond the statute of limitations. Petitioner has opposed the motion, and respondent has filed a reply.

I. Factual Background

As a backdrop to the issues raised by the instant motion, this court relies on the summary of the facts presented by the state Court of Appeal:

There are two large African American gangs, Crips and Bloods. Both are involved in the trafficking of narcotics and violent crimes such as robbery, drive-by shooting, and assault with deadly weapons. In Sacramento, Bloods predominate and mostly traffic in rock cocaine, which funds gang activities. A "set" is a segment of Bloods or Crips, usually organized by neighborhood or street of reidence. One set of Bloods in the Del Paso Heights area is the Militant Organized Brothers (MOB). . . . . MOB adopted a policy to control narcotics trafficking in its neighborhood, suppressing competition of outsiders through robbery and other acts of violence. . . . . In October 1992, Arnold Butler, a MOB member, was convicted of possession of rock cocaine for sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Both defendants [petitioner and co-defendant Wayne Lewis] were identified by the police as members of MOB . . . before the shooting of Stanley Weaver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In late May and June 1992, there was a lot of violence occurring on the streets of Del Paso Heights between different gang sets. The MOB had not been "getting along with" other sets of the Del Paso Heights Bloods. A dispute arose between Anthony Weaver, a member of the Elm Street Posse, a set of the Del Paso Heights Bloods, and defendant Johnson. At the time Weaver made his living by selling rock cocaine. Weaver testified that Johnson was an ordinary gang member while Lewis was an "original gangster," a more senior member.

On the evening of June 21, 1992, Johnson hailed Weaver when Weaver was riding home from the store on his bicycle. Weaver did not reply, rather he sped away. Johnson chased him, firing two shots. During the chase Johnson pulled a ski mask down over his face. Weaver was armed with a pistol and fired it into the air. Sometime that night afer Weaver returned home, at 4004 Fell Street, someone drove by and fired bullets into the house. A police officer called to the scene soon after the shooting found a 9 millimeter bullet and shell casings in the street and 9 millimeter slugs inside the house.

Shortly before 11 p.m. on the night of June 22, 1992, someone fired gunshots from the street into the home of defendant Johnson's mother at 154 Estes Way. Defendant Johnson was not home; however, his mother spoke with him that night after the shooting.

Shortly before midnight on June 22, 1992, someone fired more shots into the home of Weaver.

Also on the evening of June 22, 1992, sometime after 10 p.m. someone took Raymond Chess's brown Chevy station wagon . . . . It was abandoned later that night in front of the home of Vincent Bolton . . . a block from the home of Johnson's mother. Bolton saw the people who abandoned it leave in a gray or blue four door car. Defendant Johnson's latent fingerprint impressions were found on the abandoned vehicle.

On the morning of June 23, 1992, shortly before 9:30 a.m. Stanley Weaver, Anthony Weaver's father, was standing outside the Weaver house chatting with a neighbor. A gray car pulled up, coming north from the direction of North Avenue. In the car were three African American men with ski masks on. The driver fired a shot at Stanley Weaver; he turned to run and another shot hit him in the hip and he fell down. The car then drove up on the Weavers' lawn. The men continued to shoot at Stanley Weaver who, after being hit six times, crawled under his neighbor's car. The driver pursued him while his passengers shot at the Weaver house. The driver stuck his gun underneath the car and shot Stanley Weaver repeatedly.

Lewis is similar in physique to the driver. Johnson is similar in physique to the two smaller passengers.

Anthony Weaver came to the doorway of the Weaver home and fired one shot; his gun jammed. The three men in ski masks ran south on Fell Street and east on North Avenue. The abandoned gray car had been stolen sometime after 6 p.m. the night before.

The first 911 call reporting the Weaver shooting incident was received at 9:26 a.m. . . . At 9:34 a.m. another 911 call was received from Gregory Augustus . . . . In the 911 call Augustus reported that three African American males armed with guns were in the backyard, one had no shirt on, and that they were the "suspects" in the shooting on Fell Street. The men went through the yard, around the side of the house.

Augustus was watering the grass when the men went by. At trial he equivocally identified defendant Lewis as one of the three men; before trial he had identified both defendants in a photographic lineup.

LaShawn Williams was a passenger in a car being driven down North Avenue toward Fell Street on the morning Stanley Weaver was shot. She saw the defendants and another man hurry out of the alley behind Huron Street and get into a brown car parked in front of the alley. Defendant Johnson had no shirt on, he appeared to be carrying an object wrapped up in a shirt or something.

Jae Oney lives on North Avenue across from the Huron Street alley. The evening before Stanley Weaver was shot Oney saw a brown car parked blocking the alley. The morning of the Weaver shooting the car was still there and Oney, concerned about fire truck access, called the police department to complain. Officer Marlin Peterson arrived at 8:50 a.m. that morning and found a brown Oldsmobile partially blocking the Huron Street alley. The registered owner of the car is defendant Johnson. Peterson left the scene at 9:08 a.m. and returned at 10:08 a.m.; the car was no longer there.

Stanley Weaver suffered 11 gunshot wounds. He was shot through the penis and lost a testicle; he received two shots to the foot requiring repeated surgeries and has difficulty walking as a result.

A comparison of shell casings recovered on June 21st and on June 23d at the Weaver residence showed that two of the same guns were used on each occasion.

After his arrest on June 23, 1992, defendant Johnson told a police investigator he had spent the night before with a woman named Talisha at her house and had not left her house until he drove to his grandparent's [sic] house at noon.

Lodged Document (Lodg. Doc.) 2 at 3-7.

Among the issues in petitioner's federal habeas petition is a claim that he was denied the effective assistance of counsel at trial in part because of multiple failures: a failure to investigate and substantiate petitioner's alibi; a failure to impeach LaShawn Williams, the only prosecution witness positively to identify petitioner; and a failure to investigate third party culpability. Petition (Pet.) (Docket No. 1) at 32-37.*fn1 Petitioner supports this claim with three declarations. The first is from petitioner's cousin, Joseph Marshall, who avers he told police he did not steal a car and was not in a stolen car with petitioner, yet trial counsel never interviewed him. Pet., Attach. C at 104. The second is from Joe Williams, who avers he was not with LaShawn Williams on June 23, 1992, and did not see petitioner in Del Paso Heights that day.*fn2

Joe Williams further avers he was not interviewed by law enforcement or by petitioner's counsel. Id., Attach. C at 105. The third is from Freddie Marshall, who was present when his grandfather Elisha Marshall told a defense investigator that petitioner had called Elisha Marshall's house the morning of the day he was arrested. Id., Attach. C at 107. All of these declarations are dated January 2008.

Petitioner has attached additional declarations to his opposition to the motion to dismiss. It is not clear whether he is offering these other declarations as part of his underlying habeas petition, or as information suggesting that he is actually innocent of the charges. One, dated March 2005, is from Arnold Butler who avers he was not a member of the MOB, had no knowledge of petitioner's membership in MOB, did not participate in any gang activities with Johnson, and was not approached by petitioner's trial lawyer about this information. See Opp'n (Docket No. 16) at 24. The second, dated February 2008, is from co-defendant Wayne Lewis, who declares he and petitioner were not together on June 22 and 23, 1992, he was not aware of petitioner's membership in the MOB, and he had been willing to testify about these subjects at trial had petitioner's counsel asked him to do so. Id. at 25.

II. Procedural History

On May 7, 1993, petitioner was sentenced to a term of fifteen years, eight months in prison followed by a term of life with the possibility of parole. Lodged Document (Lodg. Doc.)

1.

Petitioner appealed his conviction to the Court of Appeal for the Third Appellate District, which affirmed his conviction on October 24, 1994. Lodg. Doc. 2. He sought review of this determination in the California Supreme Court, which denied review on February 15, 1995. Lodg. Docs. 3 & 4.

Petitioner embarked on a series of collateral attacks on his conviction, beginning in 1999, with a habeas petition filed in Sacramento County Superior Court on May 27, 1999. Lodg. Doc. 5. This petition was denied on June 16, 1999. Lodg. Doc. 6. Petitioner filed a motion for reconsideration ...


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