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Mark Damon Myers v. K. Harrington

May 9, 2011


The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge


This Report and Recommendation is submitted to the Honorable S. James Otero, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.


On June 30, 2010, Mark Damon Myers ("Petitioner"), filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition"). On August 19, 2010, Respondent filed an Answer to the Petition. On October 28, 2010, Petitioner filed a Reply to the Answer. Thus, this matter is ready for decision.


On February 3, 2006, Petitioner was convicted after a jury trial in the Los Angeles County Superior Court of murder, three counts of home invasion robbery, attempting to dissuade a witness, and conspiracy to dissuade a witness. (Clerk's Transcript ("CT") at 426-35.) The jury further found that the murder was committed during a robbery, that a principal personally discharged a firearm causing the victim's death, and that the crimes were committed for the benefit of a criminal street gang. (Id.) On February 20, 2008, Petitioner was sentenced to a state prison term of life without the possibility of parole, plus seventy-five years to life and a determinate term of six years. (Id. at 474-82.)

Petitioner appealed the conviction to the California Court of Appeal. (Lodgment 3.) On December 17, 2008, the court of appeal affirmed the judgment. (Lodgment 5.)

Petitioner filed a petition for review in the California Supreme Court. (Lodgment 6.) On March 25, 2009, the supreme court denied the petition. (Lodgment 7.)


Since Petitioner is challenging the sufficiency of the evidence to support his conviction on the firearm and gang enhancements, the Court has independently reviewed the state court record. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). Based on this review, the Court adopts the factual discussion of the California Court of Appeal opinion, as a fair and accurate summary of the evidence presented at trial:*fn1

Defendant, a member of the Eastside Longo criminal street gang, was a longtime acquaintance of murder victim Rudolpho Rodriguez and Rodriguez's girlfriend, Christina James, both of whom were methamphetamine users. Gregory Clark and Jo'el Bruce, with whom defendant was also acquainted, lived next door to defendant's grandmother in the City of Signal Hill. At one point defendant asked Clark if defendant could go into the methamphetamine dealing business with Clark. Clark declined.

On April 15, 2004, Rodriguez and James went to visit Clark and Bruce at their home. As Rodriguez and James approached the Clark-Bruce house, they saw defendant standing on the porch of his grandmother's house. Defendant told Rodriguez that he wanted to talk to him. Rodriguez agreed and the two talked for five to 10 minutes while James visited with Clark and Bruce. Rodriguez then joined James, Clark and Bruce inside the Clark-Bruce residence.

About five minutes later, defendant knocked on the door of the Clark-Bruce residence and was let in by Clark. Defendant was accompanied by two men, one of whom displayed a gun. Defendant told those in the room that they were being "taxed" and ordered them to hand over their valuables. Clark handed over his rings and about $200 in cash. Three cell phones were taken from James's purse. Rodriguez asked defendant's two accomplices for their names. Defendant responded that Rodriguez should not be concerned and that Rodriguez should remember that defendant was from Eastside Longo.

According to James, after the cell phones had been taken from her purse the accomplice who had the gun told James to take off her jewelry. Rodriguez then stood up, "said that they would have to shoot him now," and hit defendant in the head. Defendant said, "'Shoot him, just shoot him,'" and the accomplice with the gun shot Rodriguez.

According to Clark, the accomplice with the gun pointed it at Rodriguez and told Rodriguez to empty his pockets. After doing so, Rodriguez said to defendant, "'now you're going to have to shoot me.' And advanced on [defendant]." Rodriguez "threw the first punch" and the two struggled "somewhat." Clark next saw a flash, heard a gunshot, and saw Rodriguez fall to the floor. Clark did not recall anyone saying, "Shoot him."

Following the shooting, defendant and his accomplices fled. Rodriguez was taken to the hospital, where he died of a single gunshot wound to the torso. The fatal bullet was recovered from Rodriguez's body. A spent bullet casing was found at the scene.

The next day, a Long Beach police officer attempted to effect a traffic stop of a car being driven by an Eastside Longo gang member. The car sped off and a chase ensued, which ended when the driver crashed his car into another vehicle. A search of the route taken during the chase revealed a handgun with scratches consistent with having been thrown onto the street from a moving car. Ballistics testing determined that the bullet with which Rodriguez was shot had been fired from that handgun.

James and Clark initially denied knowing who any of their assailants were but later identified defendant. At various points before trial, defendant contacted James and told her to say that he was not at the scene. Others threatened James with harm if she identified defendant. Following defendant's arrest, defendant told an associate that there would be no case against him if James, Clark, and Bruce did not show up in court.

Gang expert Officer Abel Morales testified that Eastside Longo is an established Hispanic gang whose primary activities include murder, robbery, and drug sales. "[W]hen a gang member comes to you and say[s], 'You're being taxed,' you're paying extortion money so that they can let you continue doing what you got to do, whether it may be selling drugs or whatever it is that you do." Eastside Longo benefits from controlling drug trade in Signal Hill and areas of Long Beach. One self-identified Eastside Longo gang member had previously been convicted of attempted murder and another had been convicted of assault with a firearm.

In defense, defendant's grandmother testified that defendant has an identical twin brother. (Lodgment 5 at 2-4.)


PETITIONER'S CLAIMS Petitioner raises the following claims for habeas corpus relief:

(1) The trial court failed to instruct the jury on intent to kill as to the special circumstances allegation and the failure was prejudicial (Pet. at 5, Ex. B at 10-13);

(2) There was insufficient evidence to support the firearm and gang enhancement findings, as the evidence was based on inadmissible hearsay testimony of Officer Moreno regarding statements made to him by Moreno and Castaneda that they were gang members (id. at 6, Ex. B at 13-16); and

(3) If the Court finds Petitioner waived his objection to Officer Moreno's testimony as hearsay because counsel failed to raise a hearsay objection at trial, then Petitioner was denied the effective assistance of counsel (id. at 6, Ex. B at 16).


The standard of review applicable to Petitioner's claims is set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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). Further, a state court factual determination shall be presumed correct unless rebutted by clear and convincing evidence. Id. § 2254(e)(1).

Under the AEDPA, the "clearly established Federal law" that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). To determine what, if any, "clearly established" United States Supreme Court law exists, the court may examine decisions other than those of the United States Supreme Court. LaJoie v. Thompson, 217 F.3d 663, 669 n.6 (9th Cir. 2000). Ninth Circuit cases "may be persuasive." Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 1999). On the other hand, a state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law, if no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court. Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004); see also Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006) (in the absence of a Supreme Court holding regarding the prejudicial effect of spectators' courtroom conduct, the state court's decision could not have been contrary to or an unreasonable application of clearly established federal law).

Although a particular state court decision may be both "contrary to" and an "unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. Williams, 529 U.S. at 405. A state court decision is "contrary to" clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam) (citing Williams, 529 U.S. at 405-06). When a state court decision adjudicating a claim is "contrary to" controlling Supreme Court precedent, the reviewing federal habeas court is "unconstrained by § 2254(d)(1)." Williams, 529 U.S. at 406. However, the state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Packer, 537 U.S. at 8.

State court decisions that are not "contrary to" Supreme Court law may only be set aside on federal habeas review "if they are not merely erroneous, but 'an unreasonable application' of clearly established federal law, or based on 'an unreasonable determination of the facts.'" Id. at 11 (citing 28 U.S.C. § 2254(d)). Consequently, a state court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. See Williams, 529 U.S. at 406-10, 413 (e.g., the rejected decision may state Strickland rule correctly but apply it unreasonably); Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) (per curiam). However, to obtain federal habeas relief for such an "unreasonable application," a petitioner must show that the state court's application of Supreme Court law was "objectively unreasonable." Visciotti, 537 U.S. at 27. An "unreasonable application" is different from an erroneous or incorrect one. Williams, 529 U.S. at 409-10; see also Visciotti, 537 U.S. at 25.

Where, as here, the California Supreme Court denies a petitioner's claims without comment, the state high court's "silent" denial is considered to be "on the merits" and to rest on the last reasoned decision on these claims, in this case, the grounds articulated by the California Court of Appeal in its decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-06, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991); Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1992); ...

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