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Lee v. Harrington

April 13, 2010

KITERAN LEE, PETITIONER,
v.
KELLY HARRINGTON, WARDEN RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY [Doc. 1]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).

BACKGROUND

Following a jury trial in the Madera County Superior Court, Petitioner was convicted of four counts of robbery (Cal. Penal Code § 211)*fn1 , one count of burglary (§ 459), and one count of participating in a street gang (§ 186.22(a)). (Lodged Doc. N o. 1.) The jury also found true six sentence enhancements alleging that Petitioner was armed with a firearm during the offense (§ 12022.53(b)), and five enhancements alleging Petitioner committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22(b)(1)(C)). (Id.) Petitioner was sentenced to a term of forty-nine years in state prison. (Id.)

Petitioner filed a timely notice of appeal. On May 4, 2007, the California Court of Appeal, Fifth Appellate District credited Petitioner with an additional day of sentence credit, but affirmed the judgment in all other respects. (Lodged Doc. No. 2.)

Petitioner filed a petition for review in the California Supreme Court. (Lodged Doc. No. 3.) The petition was denied on September 12, 2007. (Lodged Doc. No. 4.)

Petitioner then filed two petitions for writ of habeas corpus in the state superior court.

The first petition was filed on May 5, 2008, and denied on May 13, 2008.*fn2 (Lodged Doc. Nos. 5, 6.) The second petition was filed on January 22, 2009, and denied on January 30, 2009. (Lodged Doc. Nos. 7, 8.)

On June 3, 2008, Petitioner filed a petition for writ of habeas corpus in the state appellate court. (Lodged Doc. No. 9.) The petition was denied on June 16, 2008. (Lodged Doc. Nos. 10.)

Petitioner also filed two petitions for writs of habeas corpus in the California Supreme Court. The first petition was filed on June 26, 2008, and denied on December 10, 2008. (Lodged Doc. Nos. 11, 12.) The second petition was filed on February 20, 2009, and denied on July 22, 2009. (Lodged Doc. Nos. 13, 14.)

Petitioner filed the instant petition for writ of habeas corpus on October 14, 2009. (Court Doc. 1.) Respondent filed an answer to the petition on February 5, 2010, and argues the petition is untimely and without merit. (Court Doc. 13.) Petitioner did not file a traverse.

STATEMENT OF FACTS*fn3

On September 16, 2003, at approximately 10:00 p.m., Stanley Cantrell, Anna Del Bianco, Paulette Leonard, and Irma Ferrarese were in the bar of Farnesi's Restaurant in Chowchilla. Three Black males wearing bandanas over their lower faces and carrying firearms strode into the bar through a side door. Ferrarese recognized Lee as one of the men.

The three men demanded the victims turn over all their money and valuables and then ordered the four people to lie down on the floor. As soon as the robbers left by the side door, Leonard ran out the front door and saw a blue or gray compact car with four people in it pulling away. Leonard jumped in her car and attempted to follow the [car] on southbound Highway 99. She eventually lost sight of the compact car. While Leonard was pursuing the robbers, someone in the restaurant reported the robbery to law enforcement.

Around 11:00 p.m. that same evening, Williams and Lee, along with a coparticipant, Brandon Crane, attempted ro rob a liquor store in Fresno. The burglar alarm went off almost immediately, and the three men fled the scene.

Around 12:30 a.m. the morning of September 17, three armed men wearing bandanas robbed a pizza parlor in Fresno. After the robbers left, the police were notified.

A citizen monitoring the police scanner saw a vehicle matching the reported description and notified the police. A high speed chase ensued on northbound Highway 99, ending near Chowchilla where the suspects' car finally was stopped. During the chase, the suspects had thrown various items out the car window. Williams, Lee, and Crane were taken into custody at the scene.

Over the next day or two, various items were recovered in the car and along the chase route on Highway 99, including a blue knit cap, a blue bandanna, a blue Harley Davidson cap, a blue hooded sweatshirt, a Tec-9 assault rifle with ammunition, an empty nine-millimeter ammunition box, and personal property of the victims.

Williams and Lee were charged in Madera County with four counts of robbery, burglary, and membership in a street gang as a substantive offense. In addition, it was alleged that the robberies and burglary were committed for the benefit of and at the direction of a criminal street gang. As to all counts, it was alleged that Williams and Lee personally used a firearm. It also was alleged that Lee suffered a prior serious felony conviction and served a prior prison term. Williams was alleged to have served two prior prison terms.

At trial, Sergeant Thomas Trinidad of the Merced Police Department testified as an expert on gangs. Trinidad described the initiation process for gang members, the significance of tattoos, hand signs, graffiti, and style of dress. In the gang culture, committing property crimes is seen as supporting the gang financially, while committing violent crimes is seen as supporting the gang by generating fear of the gang among other gangs and the general public. Violence also serves to deter victims from testifying. Property crimes are committed to support the gang lifestyle because most gang members are unemployed.

Trinidad is familiar with a criminal street gang known as the Merced Gangster Crips. The gang consists of 86 members or affiliates, uses the color blue as an identifying color, including the wearing of blue bandanas, and has robbery as one of its primary activities.

Based upon Lee's past admissions, his contacts with Merced police, and state parole records, Trinidad was of the opinion that Lee was a member of the Merced Gangster Crips. Trinidad also testified that Williams was a member of the same gang, based upon gang photos, the "MGC" tattoo on Williams's arm, a chest tattoo reading "MG Crip gangster," and the moniker "Mr. Dice," which also was tattooed on Williams.

A hypothetical fact pattern, based upon the Farnesi's robbery, was posed to Trinidad. He opined that each of the three perpetrators would receive a benefit from the crime, as well as the gang as a whole, and each perpetrator and the gang would receive a monetary benefit and an increase in status. It was to the gang's benefit to have multiple gang members involved in the commission of a crime because it increased the chance of a successful outcome. Since gang members tend to be unemployed, their main means of economic support is by committing crimes for profit.

Trinidad also testified that if gang members went together to a location for the purpose of committing a crime, it would tend to show the crime was committed for the benefit of, or at the direction of, the gang. It also was significant, in Trinidad's opinion, that Lee, Williams, and Crane wore blue clothing and blue bandanas during the robbery.

Additionally, Trinidad presented various court records establishing that the required predicate offenses had been committed by the Merced Gangster Crips.

The jury found Williams and Lee guilty as charged of all substantive offenses and found the enhancements true. In a bifurcated trial on the prior conviction allegations, Lee admitted to one prior prison term and Williams admitted to two prior prison terms. (Exhibit 1, at 2-5.)

DISCUSSION

I. Timeliness of Petition

A. Limitation Period for Filing a Petition for Writ ...


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