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Nicholas Chernobieff, Jr. v. James Walker

March 10, 2011

NICHOLAS CHERNOBIEFF, JR. PETITIONER,
v.
JAMES WALKER, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Nicholas Chernobieff, a state prisoner, proceeds pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of various felony offenses in the Placer County Superior Court, case number 62042340, for which he is currently serving an indeterminate life term in prison plus an additional consecutive determinate term of 12 years and 4 months.

II. BACKGROUND

This statements of facts was taken from the unpublished opinion of the California Court of Appeal, Third District, on direct review of petitioner's convictions. Petitioner is the defendant referred to therein. Since these factual findings have not been rebutted with clear and convincing evidence they are presumed correct. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004).

During the morning of March 11, 2004, Dustin Nunes, a manager at a Target Store in Roseville, observed three persons enter the store[:] defendant, a younger female named Ali Beebout, and Shane Patterson, a known "receipt shopper."FN On closed circuit television, Nunes tracked defendant and Beebout as they toured the store and placed items in a shopping cart. Concerned about detaining defendant because he had a prosthetic hook attached to his left arm, Nunes called the Roseville Police Department and spoke with Detective Scott Goucher. Detective Goucher, accompanied by Detective Michael Easter and Sergeant Michael Sherlock, all dressed in plainclothes, immediately left for Target in an unmarked van.

FN. A "receipt shopper" finds receipts and then obtains items for these receipts inside the store and attempts to return them for a cash refund.

Seargent Sherlock stayed in the van while Detectives Easter and Goucher went inside and watched defendant and Beebout on the closed-circuit television. Beebout went to the return desk and presented a large red ball, showing the clerk what appeared to be a used receipt. Review of the tapes had shown Beebout had not entered the store with the ball. The detectives also learned that, according to a clerk at the fitting room, Beebout had entered the fitting room wearing a black bra and had left wearing an orange one.

Beebout met with defendant at the front of the store where they had a discussion. The two then exited the store, leaving merchandise in their shopping cart behind. Beebout sat down and began to smoke a cigarette while defendant proceeded to his car.

The plan was for Sherlock to block defendant's vehicle when he attempted to back out of his parking space; Goucher would assist Sherlock in detaining defendant; and Easter would detain Beebout. When Sherlock saw defendant get into his car, a Saturn, and start it, he began driving to block defendant's car. However, another vehicle pulled out of its parking place, thereby preventing Sherlock from blocking defendant.

Sherlock radioed the other officers to detain defendant when his car got to the front of the store. As defendant stopped briefly in front of Target, Goucher, who was wearing tan pants and a light blue shirt, pulled out his badge which was hanging from a chain under his shirt and lifted his shirt to show his "duty gear," which included his holstered gun.

Defendant's window was down and Goucher held out his badge and said, "police officer. Turn your car off." Defendant revved the engine and Goucher saw him attempting to move the shifting lever. Goucher again identified himself and ordered defendant to turn off his car. The Saturn "peeled" out as Goucher unsuccessfully tried to grab the driver's door.

Detective Easter, who estimated he was about 50 yards from where Goucher had attempted to detain defendant, heard the squealing of tires and Goucher yell, "police, stop the vehicle." Easter quickly moved into the street from the sidewalk, taking out his badge and gun, expecting defendant to see him and stop. Easter continued to move to his left to get out of the way, but defendant swerved toward him and struck him, causing him to flip over the car and land on the pavement. Defendant did not stop, but continued onto a street and drove off.

Goucher observed the Saturn swerve and hit Easter. Goucher fired six shots at the Saturn as it drove off at a high rate of speed. Sergeant Sherlock, who was driving behind defendant, described the Saturn's trajectory toward Detective Easter as more of a "drift" than a swerve.

Richard Withrow, a Target employee, was about five feet from Detective Goucher when he heard Goucher tell defendant to turn off his engine and get out of the car. Withrow saw Goucher's badge around his neck and knew Goucher was a police officer. Withrow observed the Saturn accelerate away from Goucher, swerve and strike Detective Easter. However, Withrow thought the Saturn swerved to avoid an SUV which was turning into the lot. Store surveillance cameras captured the Saturn's acceleration away from Goucher and its striking Detective Easter.

Easter was transported to a hospital for injuries to his arms, legs and ankle. Although released that same day, he was off duty for a week and one-half, was on modified duty for another eight weeks, and suffered torn cartilage in his knee which had to be surgically removed.

The Saturn was found about an hour later, abandoned in a driveway. Handcuffs belonging to Easter were wrapped around the car's antenna. A search of the Saturn's trunk disclosed baggies containing methamphetamine as well as paraphernalia indicating drug trafficking.

Sergeant Michael Allison, an expert in accident reconstruction, determined from the surveillance video and his test driving the Saturn at Target, that defendant was traveling about 29 miles per hour when he struck Easter, who was 81 feet from where Goucher had attempted to detain defendant. Allison opined that if the striking of Easter had been an accident there would have been skid marks following the impact, but there were none. Allison concluded that because of the camera angles and the poor quality of the video any swerving of the Saturn could not be accurately determined. Allison calculated that there was 15 feet between the SUV and Detective Easter when defendant struck Easter, thus giving defendant adequate room to pass without hitting Easter. Detective Gary Hallenbeck, who was with the Yolo County Sheriff's Department, testified that on February 26, 2003, he and several other officers served a search warrant for defendant's residence. Hallenbeck, dressed as a telephone repairman, spoke with defendant at the front door and attempted to lure him outside. When the ruse failed, Hallenbeck signaled for other officers, who were in uniform and hiding in a van, to approach the house. Defendant saw the officers and unsuccessfully tried to slam the door. A struggle ensued until defendant was handcuffed.

A search of the residence disclosed about 16 grams of methamphetamine in several bags; about 76 grams of marijuana; a digital sale, a cutting agent, and a loaded .380 semiautomatic handgun.

It was stipulated that on March 11, 2004, defendant had charges pending in Yolo County for possession of both methamphetamine and marijuana for sale and for maintaining a place for the use or sale of controlled substances and that he had been released on his own recognizance in that case on September 19, 2003.

Defendant called eight witnesses who were in the area when Detective Goucher attempted to detain defendant. None of these witnesses heard Goucher yell "police officer."

Gregg Stutchman, an expert in forensic photography, determined from the Target store videos that the Saturn turned just slightly away from the SUV prior to striking Detective Easter. Scott MacDonald, an automobile accident investigation expert, concluded from his measurements, which he claimed were accurate within a range of two feet, that Detective Easter had moved into a position which made his collision with the Saturn unavoidable.

People v. Chernobieff, No. L2967199, slip op. at 1 -3 (Cal.App. 3 Dist., 2007).

Petitioner was convicted by jury of seven felony offenses: Count I: Willful, deliberate, and premeditated attempted murder of a peace officer, while knowing the officer was in the performance of his duties (see Cal. Penal Code §§ 187(a), 664);

Count II: Assault on a peace officer (see Cal. Penal Code § 245(c)), as well as the lesser included offense of assault (see Cal. Penal Code § 245(a)(1));

Count III: Conspiracy to commit grand theft (see Cal. Penal Code §§ 182(a)(1), 487);

Count IV: Possession of a check with intent to defraud (see Cal. Penal Code § 475(b));

Count V: Second degree burglary (see Cal. Penal Code § 459); Count VI: Possession of methamphetamine for sale (see Cal. Health and Safety Code § 11378); and Count VII: Transportation of methamphetamine (see Cal. Health and Safety Code § 11379(a)).

As to Counts I and II, the jury found true that petitioner inflicted great bodily injury on Officer Easter (see Cal. Penal Code § 12022.7(a)). The jury further found true that petitioner committed the offenses in question while on bail (see Cal. Penal Code § 12022.1); that he served a prior prison term (see Cal. Penal Code § 667.5(b)); and that he had three prior controlled substance convictions (see Cal. Health and Safety Code § 11370.2(c)).

For the attempted murder, an indeterminate life term was imposed, in addition to a consecutive determinate term of 12 years 4 months for the remaining offenses and enhancements.

On direct review, the California Court of Appeal, Third District, affirmed the judgment and sentence, except to reverse conviction on the lesser included offense in Count II. People v. Chernobieff, supra, slip op. at 1. A petition for review to the California Supreme Court was denied. Petitioner filed four state habeas corpus petitions which were also denied. The ...


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