The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Stanislaus County Superior Court, Petitioner was convicted of attempted premeditated murder (Cal. Penal Code §§ 664(f)/187)*fn2; being a felon in possession of a firearm (§ 12021(a)); and possession of a short-barreled shotgun (§ 12020), with further findings that he committed the murder while personally using a firearm (§§ 12022.5(a) & 12022.53(b)) and had a prior serious felony conviction (§ 667). Petitioner is serving an aggregate term of twenty-nine years to life.
Petitioner filed a timely notice of appeal. The California Court of Appeal, Fifth Appellate District affirmed the judgment on February 26, 2009.
Petitioner then filed a Petition for Review in the California Supreme Court, which was denied on May 20, 2009.
Petitioner filed the instant federal Petition for Writ of Habeas Corpus on May 21, 2010.
Respondent filed an answer to the petition on July 28, 2010. Petitioner did not file a traverse.
On February 18, 2005, Erskine Woodson was living at the El Capitan Motel in Modesto. On this day his girlfriend, Cheryl Wells (Wells), and another friend, Elizabeth Martinez, were present in the room. The daughter of Wells, Kimberly Wells (Kimberly), is the mother of defendant's child.
At approximately 4 p.m. there was a knock on the door of Woodson's motel room. Defendant was at the door.*fn4 Woodson and defendant walked outside. After having a conversation, defendant turned his back to Woodson then turned back around holding a sawed-off shotgun. The two tussled, and Woodson ran back into the motel room. Defendant followed Woodson into the room. Woodson jumped on a chair. He heard a click sound. Woodson threw a lamp at defendant and ran from the room.
The manager of the motel, Andy Yan, heard a noise and ran outside to see what was going on. Woodson was running and shouted to Yan to call the police because defendant was trying to shoot him. Yan saw a white male dressed in dark clothing point something at Woodson and then Yan heard a click. Yan retreated inside and called police.
Keith Terry was parked across the street from the motel when he heard a loud crash. Terry saw a white male backing out of a motel room with a gun in his hands. The gun looked like a sawed-off shotgun. Defendant pointed the gun at Woodson and pulled the trigger. Terry heard a click. Defendant pulled the trigger a second and a third time while following Woodson.
Terry saw defendant walk toward the canal bank. He did not get a good look at defendant's face, but he was able to describe the clothes he was wearing.
Police Officer Alfredo Ibarra detained defendant because he was running by the canal and matched the general description of the man who had attempted to shoot Woodson. Defendant was less than one-half mile from the motel when he was detained. The canal bank was searched and officers found a sawed-off, single-shot shotgun pushed under some grass. Defendant was detained 192 yards from where the shotgun was found. The shotgun's stock was wrapped in a bandana and the gun was loaded.
Officer John Carrico went to the motel and interviewed Woodson approximately 20 minutes after the incident. Woodson told Carrico that after defendant knocked on the door, the two went outside and talked. Defendant accused Woodson of some things and then defendant turned around. When defendant turned back around he was holding a sawed-off shotgun. Defendant pointed the gun at Woodson's chest and made a derogatory remark. Woodson heard a click sound and ran back into his room, slamming the door behind him. Defendant kicked in the door, and Woodson again heard the click sound. Woodson picked up a lamp, threw it at defendant, and then ran from the room. During the incident Woodson saw defendant open the gun and load it. Woodson described the gun to Carrico when he was interviewed at the motel right after the incident and identified the gun that was found at the canal as the shotgun used by defendant. Woodson was 100 percent sure it was the same gun.
Officer Carrico testified that Woodson identified his assailant as "Jon." Woodson was transported for an in-field show-up of defendant. When Woodson saw defendant, he told Carrico, "That's the one." Woodson was yelling at defendant during the show-up, asking him why he did that to him.
The man who saw the incident from across the street, Terry, identified defendant at an in-field show-up. His identification was not based on defendant's face, but Terry said defendant was wearing the exact clothes and had the same haircut as the man he saw backing out of the motel room with a gun. In addition, defendant was the same race, height, and weight as the man Terry saw.
While being booked at the jail, the officers were discussing how high defendant's bail would be if he actually shot someone. Defendant was not part of this conversation but he stated, "The gun would not fire." During his questioning at the jail, defendant first stated that he was walking down the street by the motel when Woodson waved to him; he then walked down the canal bank and was stopped by police. Upon further inquiry defendant said he went to the motel to speak to Woodson, a pimp, because Woodson had allegedly raped defendant's girlfriend, Kimberly. While speaking to Woodson, defendant claimed Woodson took a swing at him. Defendant denied pointing a gun at Woodson.
Elizabeth Martinez was in the motel room when defendant knocked on the door. She saw a man with a hooded sweatshirt. During the encounter she saw part of the gun when Woodson was on top of the chair. It seemed like Woodson's girlfriend, Wells, knew the gunman. Martinez was taken to the in-field show-up of defendant. She identified defendant as looking like the individual who was in the motel room with a gun. She identified the back of the sweatshirt defendant was wearing as the same sweatshirt worn by the person in the motel room and also said he had on the same pants. She said that defendant was of similar height and weight as the person in the room.
Wells testified under a grant of use immunity. She had known defendant for three years, as he is her daughter Kimberly's boyfriend. Wells was Woodson's girlfriend and was in bed in his motel room when there was a knock on the door. The man at the door was wearing a hooded sweatshirt and pointed a gun at Woodson. She testified that the gun found at the canal was not the gun used by the man in the room. Two or three weeks before the incident, Wells had a talk with defendant. Defendant informed her that Kimberly told him that Wells had turned Kimberly out on the street to be a prostitute and that Woodson had raped Kimberly. Wells told defendant that none of what he had been told was true.
In an interview with police prior to trial, Wells identified defendant as the man who entered the motel room and tried to shoot Woodson.
Woodson did not want to testify at trial and during his testimony vehemently stated over and over that defendant was not the person who tried to shoot him. Before trial, Woodson told Cindy Ramsey, a clerk at a motel where Woodson was staying, that it was his girlfriend's daughter's husband who tried to shoot him. Woodson told Ramsey that he was going to lie and say they had the wrong person because he was afraid for his safety. In addition, Woodson was mad at the police for treating him poorly. Ramsey testified ...