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 [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.
Following a jury trial in the Fresno County Superior Court, Petitioner was convicted of discharging a firearm at an occupied motor vehicle (count 1) and of assault with a firearm (count 2). Cal. Penal Code*fn1 §§ 246, 245(a)(2). Street gang enhancements that were attached to both counts and a personal firearm use allegation that was attached to count 2 were found true. §§ 186.22(b)(1), 12022.5(a)(1). Petitioner was sentenced to fifteen years to life imprisonment for count 1; the sentence imposed for count 2 was stayed pursuant to section 654.
Petitioner appealed the judgment. The California Court of Appeal affirmed the judgment in all respects.
On May 22, 2007, Petitioner filed a petition for review in the California Supreme Court. The petition was denied on June 27, 2007.
On April 9, 2007, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. The petition was denied on May 3, 2007, without prejudice to refiling the same petition in the superior court.
On June 16, 2008, Petitioner filed a petition for writ of habeas corpus in the Fresno County Superior Court. The petition was denied on July 3, 2008.
On August 5, 2008, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. The petition was denied on May 14, 2009.
On May 29, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The petition was denied on October 28, 2009.
Petitioner filed the instant federal petition for writ of habeas corpus on January 19, 2010. Respondent filed an answer to the petition on August 13, 2010. Petitioner filed a traverse on
On October 7, 2005, Brittney Fulmer was driving in her blue Ford Probe on Jensen Avenue near the on ramp to Highway 41. Terence Williams was sitting in the front passenger seat and Melvin Cooper was sitting in the back seat behind Fulmer. Fulmer was traveling in the far right lane. Shortly after she proceeded through the intersection and prepared to enter the freeway ramp, she heard the sound of two gunshots coming from her left. She looked over and saw a tan or brown Toyota Camry. This was the only vehicle near her in traffic. The front passenger window of the Camry was open. Fulmer recognized the driver of the Camry as Jamie Stanfield. A male was sitting in the front passenger seat. When Fulmer subsequently examined her car, she observed a bullet hole above the driver's side wheel well.
Later that day, Fulmer identified [Petitioner] as the shooter to Fresno Police Officer Douglas Wright and she selected [Petitioner] and Stanfield in photographic lineups. Fulmer told Wright that she saw Petitioner's right arm outside the passenger window. He was pointing a gun at her. On January 2, 2006, Fulmer told Fresno Police Detective Ron Flowers that "[s]he saw [Petitioner] extend his arm out of the window of the tan car and fire two shots into her car."
Stanfield was arrested and interviewed on October 17, 2005. Flowers testified that Stanfield said that she was driving [Petitioner] toward an area of Fresno known as the Dog Pound. [Petitioner] received a cell phone call and became engaged in a heated conversation with another male. The caller said that he had been watching [Petitioner] and Stanfield while they were driving. The caller wanted to meet [Petitioner] or his group on Jensen Avenue. [Petitioner] told the caller, "Bitch ass nigga. I'm going to get you." Then he said, "When I catch you I'm going to smoke your black ass." As Stanfield drove onto Jensen Avenue [Petitioner] suddenly rolled down his window, produced a handgun and fired at least one shot at a beige car in the lane to the right of them. Stanfield asked [Petitioner] why he shot at the car. [Petitioner] replied that the car's occupants were from TWAMP (which is an alignment of Black street gangs) and they were about to be attacked. *fn2
Detective Flowers also gave expert gang testimony. Williams is a member of a street gang known as the Young Black Soldiers (YBS). [Petitioner] is an active member of a street gang known as the Dog Pound Gang (DPG). The primary activities of the DPG include the sale of narcotics, shootings, weapons offenses, assaults, pimping, rape and murder. Flowers testified about two predicate crimes involving DPG members.
Flowers also testified that the YBS is one of a group of gangs that have aligned together in an association known as TWAMP. The DPG is allied with a rival alignment of gangs known as MUG. DPG members consider members of TWAMP allied gangs to be enemies. If two rival gang members see each other on the street, one will usually attempt to act out before the other.
Flowers opined that [Petitioner's] act of shooting into Fulmer's car was committed for the benefit of the DPG. The shooting benefitted the DPG in two ways. First, it potentially could have resulted in the death of a rival gang member who is a threat to the DPG. Second, it sent a strong signal to rival gangs that the DPG is a "force to be reckoned with." The shooting indicated to other gangs that DPG members are capable of and willing to use violence. Also, if [Petitioner] had not shot at Williams and this fact became known, [Petitioner] could have been perceived as a coward.
[Petitioner] presented an alibi defense. Briniece O'Guinn testified that she and [Petitioner] took their two children to a doctor's appointment scheduled around 1:45 p.m. Afterward, they took the bus to the police station and picked her car up from the impound lot. It was stipulated that O'Guinn's vehicle was released to her at approximately 4:51p.m. *fn3
In rebuttal, Detective Flowers testified that he interviewed O'Guinn by telephone on January 6, 2006. O'Guinn said that she and [Petitioner] were together with their children at a Motel 6 on October 7, 2005, from 8:00 p.m. to 9:00 p.m. (Ex. 1 at 4-5.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody
pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this Court.
28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams (Terry) v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id., quoting Williams, 529 U.S. at 409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, at 1175 (citations omitted). "Rather, that application must be objectively unreasonable." Id.(citations omitted).
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).
Courts further review the last reasoned state court opinion. SeeYlst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, where the state court decided an issue on the merits but provided no reasoned decision, courts conduct "an independent review of the record . . . to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Respondent argues that Claims One, Two, Four, Five, Seven, Eleven, and Twelve are procedurally defaulted.*fn4
A claim is procedurally defaulted for federal habeas purposes if the state court relies on state procedural grounds to deny relief. Coleman v. Thompson, 501 U.S. 722, 729 (1991). This doctrine of procedural default is based on the concerns of comity and federalism. Id. at 730-32.
There are limitations as to when a federal court should invoke procedural default and refuse to evaluate the merits of a claim because the petitioner violated a state's procedural rules. Procedural default can only block a claim in federal court if the state court "clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989). In this case, the California Supreme Court denied claims one, two, four, five, seven, eleven, and twelve on the procedural ground that "a petitioner cannot rely on grounds that could have been raised in his appeal when seeking relief by way of habeas corpus."*fn5 This rule is known as the Dixon bar which prohibits petitioner's from raising claims in state habeas that they could have, but did not, raise on direct appeal. In re Dixon, 41 Cal.2d 756, 759 (1953).
The state law ground must also be independent of federal law. "For a state procedural rule to be 'independent,' the state law basis for the decision must not be interwoven with federal law." LaCrosse, 244 F.3d at 704, citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983); Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996), quoting Coleman, 501 U.S. at 735 ("Federal habeas review is not barred if the state decision 'fairly appears to rest primarily on federal law, or to be interwoven with federal law.'") "A state law is so interwoven if 'the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed.'" Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000), quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985).
"A default under an independent and adequate state procedural rule operates as a bar in federal court unless the petitioner can show cause for and prejudice from the default." Valerio v. Crawford, 306 F.3d 742, 773 (9th Cir. 2002) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)). Normally, "cause to excuse a default exists if the petitioner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Cook v. Schriro, 538 F.3d 1000, 1027 (9th Cir. 2008) (internal quotation marks omitted).
"[P]rior to 1998 [the California courts] necessarily addressed fundamental constitutional claims when applying the Dixon rule." Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (citing In re Robbins, 18 Cal.4th 770 (1998)). Therefore, prior to 1998, a California court "made an antecedent ruling on federal law before applying the Dixon bar to any federal constitutional claims . . ., by concluding that no fundamental constitutional error had occurred." Id. at 1153. Justice Koziniski has recently explained the independence of the Dixon ruling stating:
That all changed with In re Robbins, where the California Supreme Court explained that "we shall assume, for the purpose of addressing the procedural issue, that a federal constitutional error is stated, and we shall find the exception inapposite if, based upon our application of state law, it cannot be said that the asserted error 'led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner." 18 Cal.4th 770, 811-12, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998) (quoting In re Clark, 5 Cal.4th 750, 797, 21 Rptr.2d 509, 855 P.2d 729 (1993)). "The purpose of this approach was to establish the adequacy and independence of the State Supreme Court's future Dixon/Robbins rulings and to indicate that a prisoner seeking collateral relief with respect to new federal claims no longer had any recourse to exhaust in the state courts." Park, 202 F.3d at 1152 n.4. Although the Ninth Circuit hasn't addressed the independence of California's Dixon rule post-Robbins, when evaluating a different procedural bar with the same exceptions it held that "the California Supreme Court's post-Robbins denial of [petitioner's] state petition for lack of diligence (untimeliness) was not interwoven with federal law and therefore is an independent procedural ground." Bennett v. Mueller, 322 F.3d 573, 582-583 (9th Cir. 2003). Robbins thus converted Dixon into an independent state ground. See Protsman v. Pliler, 318 F.Supp.2d 1004, 1007-09 (S.D. Cal. 2004) (reaching the same conclusion).
Smith v. Crones, 2010 WL 1660240 at * 1 (E. D. Cal. Apr. 22, 2010).
Based on the reasoning set forth by in Crones, the Dixon bar is independent of federal law. The next determination is whether the rule is adequate. Once the Respondent has "pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner." Bennett v. Mueller, 322 F.3d 573, 582-583 (9th Cir. 2003).
Petitioner initially argues that claim two was presented on direct appeal. The Court agrees with Petitioner and finds that the procedural bar cannot be imposed on Claim Two as it was presented to and addressed by the state appellate court. See, infra, Ground E.
Petitioner argues that claims one and four involve federal due
process issues for which Dixon does not apply. The mere statement or
presentation of a federal due process claim does not establish one of
the exceptions to the application of the Dixon bar.*fn6
Petitioner has not meet his burden of demonstrating that the
Dixon rule is not adequately applied by the state court and therefore
these claims are procedurally barred. Notwithstanding the procedural
default, for the reasons explained below the claims fail on their
D. Insufficient Evidence to Support Finding Offenses Were Committed for Benefit of Gang Petitioner claims there was insufficient to prove that the "sale of illegal drugs" was a "primary activity" of the Dog Pound Gang ("DPG"), as defined in California Penal Code § 186.22. This claim was presented to the Fresno County Superior Court, the California Court of Appeal, and the California Supreme Court by way of post-conviction review petitions. The Fresno County Superior Court found that Petitioner could have, but did not, raise this claim on direct review. The California Court of Appeal and the California Supreme Court summarily denied the claim, and it is presumed these courts denied the claim on the same procedural ground identified by the Fresno County Superior Court. Ylst v. Nunnemaker, 501 U.S. at 803.
The law on insufficiency of the evidence claim is clearly established. The United States Supreme Court has held that when reviewing an insufficiency of the evidence claim on habeas, a federal court must determine whether, viewing the evidence and the inferences to be drawn from it in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Sufficiency claims are judged by the elements defined by state law. Id. at 324, n. 16.
In this instance, the jury was instructed with California Penal Code § 186.22 as follows:
If you find the defendant guilty of either of the crimes charged in Counts One or Two, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant committed that crime for the benefit of, at the direction of, or in association with a criminal street gang. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.
To prove this allegation, the People must prove that: 1. The defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang;
AND 2. The defendant intended to assist, further, or promote criminal conduct by gang members.
A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal:
1. That has a common name or common identifying sign or symbol;
2. That has, as one of its primary activities, the sale of illegal drugs; AND
3. Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal street activity.
In order to qualify as a primary activity, the crime must be one of the group's chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group.
A pattern of criminal gang activity, as used here, means:
1. The commission of, or conviction of, any combination of two or more of the following crimes: Possession of Illegal Drugs for purposes of Sale in violation of Health and Safety Code Section 11351.
2. At least one of those crimes was committed after September 26, 1988; 3. The most recent crime occurred within three years of one of the earlier crimes;
AND 4. The crimes, if any, that establish a pattern of criminal activity, need not be gang-related.
The People need not prove that the defendant is an active or current member of the alleged criminal street gang.
You may not find that there was a pattern of criminal gang activity unless all of you agree that two or more crimes that satisfy these requirements were committed, but you do not have to all agree on which crimes were committed.
The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved. (CT 165-166.)
Under California law, "[s]ufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." People v. Sengpadychith, 26 Cal.4th 316, 324 (2001). A gang's primary activity ...