FINDINGS AND RECOMMENDATIONS
Petitioner, Gregory A. Moss, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2008, Petitioner entered a guilty plea to possession of a firearm by a felon and admission of prior felony convictions and terms of imprisonment. In addition, Petitioner was convicted, following a jury trial in Solano County Superior Court, of felony assault on a peace officer with a semiautomatic weapon with penalty enhancements for use of a firearm. Petitioner is currently serving a determinate sentence of seventeen years in state prison. Here, Petitioner challenges the constitutionality of his conviction.
Petitioner presents two grounds for relief. Specifically, the claims are as follow:
(1) His conviction for felony assault on a peace officer with a semiautomatic with a semiautomatic weapon is not supported by sufficient evidence.
(2) Trial counsel rendered prejudicially ineffective assistance.
Based on a thorough review of the record and applicable law, it is recommended that both of Petitioner's claims be denied.
The basic facts of Petitioner's crime were summarized in the unpublished opinion of the California Court of Appeal, First Appellate District, as follow:
Around 8:30 p.m. on July 19, 2005, Fairfield police officers Frank Piro and Paul Agusto were on duty, in uniform, and in a marked patrol car in an area known for criminal activity in Fairfield.FN2
FN2. The amended information alleges that the offenses occurred on July 19, 1995. The reporter's transcript indicates that the prosecutor referred to January 19, 2005 in his direct examination of Officer Piro. No issue is made of this discrepency.
The officers observed a green Ford Thunderbird with a broken tail light and conducted an enforcement stop. Officer Piro parked the patrol vehicle behind the Thunderbird and contacted the driver (Gatson). Moss was in the front passenger seat. Officer Agusto was the cover officer.
The officers learned that Gatson was on probation, and Gatson agreed they could search the car. Gatson nonetheless became upset. Officer Piro took Gatson out of the car, brought him back to the patrol vehicle, and had him sit on the curb. Officer Agusto stood near Gatson, who was not in handcuffs.
Officer Piro then returned to the Thunderbird and told Moss that the officers were going to search the car. Piro was concerned that Moss's baggy clothing and untucked T-shirt might be concealing a weapon in his waistband area.
Officer Piro instructed Moss to get out of the Thunderbird, placed him in a "control hold," and had him step out of the car. (At trial, Piro explained that a control hold is a hold that does not apply pressure and is used by police to remove people from vehicles so they cannot fight or flee.)
Moss, who had his back to Officer Piro, suddenly swung his left arm toward Piro in an attempt to hit him, and tried to run forward to free himself from Piro's grip. They struggled for a few seconds, and Piro, unable to regain control, released him. Officer Agusto ran over and shot Moss with his Taser. (At trial, the Taser was explained to be a non-lethal device that "locks up" muscles and makes it difficult to move.) The Taser's darts struck Moss in the leg and near his left shoulder, and he fell to the ground about six to eight feet in front of the Thunderbird. As Moss lay on his stomach, Piro handcuffed Moss's hands behind his back. It was now Agusto's responsiblity to stay with Moss while Piro completed the investigation.
Gatson then got up from the curb and walked towards the officers, who ordered him to sit down. Uncertain whether Gatson was going to flee or try to assist Moss, Officer Piro approached Gatson to handcuff him.
Officer Agusto, standing about three feet from Moss, was responsible for watching Moss and also covering Officer Piro as he attended to Gatson. The Taser darts were still in Moss's body, and the Taser was still in Agusto's hand. After looking towards Piro and Gatson, Agusto looked back at Moss, who was still on his stomach, and saw him reaching across the back of his body and attempting to place his hands or right hand underneath him, shifting his weight like he was rocking back and forth slightly. Agusto ordered Moss to keep his hands behind his back. Agusto checked on Piro, and when he looked back at Moss, Moss had completely concealed his right hand underneath his body, with his left arm pulled all the way to the right side of his back. Moss's right hand was under his waistband area. Moss then rolled onto his left shoulder, toward Agusto, revealing a gun in his hand. Moss's hand was on the grip of the gun and he was trying to get a better grasp of it. In a split second, Moss gained control of the gun and pointed it at Agusto; Agusto could see down the barrel of Moss's gun.
Officer Agusto "sort of panicked" and, stepping out of the line of fire, reactivated the Taser and kicked Moss twice in the side; Moss rolled over onto the gun with his arms behind his back. Agusto yelled "gun" to Officer Piro. Agusto activated the Taser a third time to immobilize Moss, rolled Moss onto his left side, pulled the gun out, and tossed it away.
When Officer Piro heard Agusto yell "gun" and the sound of a Taser, he finished handcuffing Gatson, ordered him to stay on the ground, and ran to Agusto's location.FN3 Piro got there within a couple of seconds, observing Agusto standing over Moss and pointing a Taser at him. Agusto pointed toward the sidewalk and yelled that a gun was there. Piro saw the gun on the sidewalk, about three feet from Moss, and secured it. The gun was a semi-automatic firearm, loaded with five rounds, with one round already in the chamber.
FN3. Officer Piro was 10-15 feet from Officer
Agusto and Moss while he was handcuffing Gatson, and he had not seen Moss with a gun or observed Agusto kick Moss, move to avoid the line of fire, or roll Moss over to get the gun.
Officer Agusto radioed dispatch for more officers, explaining to the dispatcher that a suspect had pulled a gun on him. A recording of the call was played for the jury.
Officer Agusto also told Officer Piro that Moss had pulled a gun on him. Piro, who had known Agusto for over six years, had never seen Agusto so shaken up. Agusto testified that his hands were trembling and that he was overwhelmed by what had occurred. He was unable to concentrate further that day and had to return home.
Officer Piro took Moss to the Northbay Regional Medical Center to have the Taser darts removed. He noted no injuries on Moss except the dart wounds.
The prosecution placed into evidence the semiautomatic firearm in Moss's possession and Moss's prior convictions for grand theft and possession of a controlled substance for sale.
Moss testified that he and Gatson were going to Gatson's grandmother's house when they were stopped by Officers Piro and Agusto. Gatson produced his driver's license, and Moss showed Piro his identification. Gatson become angry and asked, "Why you come after us, you racist?" Officer Agusto denied the accusation. Moss became fearful because he was armed with a gun that he ...