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Andy O. Trotter v. R. Lopez

May 24, 2011

ANDY O. TROTTER, PETITIONER,
v.
R. LOPEZ, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2007, a jury found petitioner guilty of two counts of attempted murder with premeditation and deliberation (Cal. Penal Code § 664/187(a)) (counts one and two), discharging a firearm from a motor vehicle at another person other than an occupant of a motor vehicle (Cal. Penal Code § 12034(c) (count three), and shooting at an inhabited dwelling (Cal. Penal Code § 246) (count four). The jury further found that the crimes were committed for the benefit of a criminal street gang with the intent to promote, further and assist in criminal conduct by gang members (Cal. Penal Code § 186.22(b)(1)). Regarding counts one and two, the jury also found that petitioner intentionally discharged a firearm within the meaning of California Penal Code § 12022.53(c).

Petitioner is serving a sentence of life with the possibility of parole.

This action is proceeding on the original petition filed April 26, 2010, as to the following claims: 1) the trial court's evidentiary rulings violated due process as well as petitioner's right to present a defense (3 claims); 2) alleged insufficient evidence; and 3) alleged ineffective assistance of counsel.*fn1

After carefully considering the record, the undersigned recommends that the petition be denied.

II. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citations omitted) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85 (2011). That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief. Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. Id. at 131 S. Ct. at 786.

III. Factual Background

Respondent's answer contains a factual summary of petitioner's offenses. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it below.

At approximately 10:30 p.m. on April 12, 2005, Rasheed Washington drove from his grandmother's house to Elm Street, between Grand Avenue to the south and Harris Avenue to the north, in the Del Paso Heights section of Sacramento to meet up with his cousin, Dellanthony Bradford, and a friend, Ivory King. (Reporter's Transcript, Volume 1 ("1 RT") at 90-95, 124, 146-47.) When Washington arrived, he stopped his car in the middle of the street facing south toward Grand Avenue, while Bradford's car was parked facing north toward Harris Avenue. Bradford came over to the driver's side of Washington's car to talk with him while King remained seated in the passenger seat of Bradford's car listening to music. (1 RT at 97-98, 124-29, 149-50.)

Washington and Bradford had been talking in the street for about five minutes when a dark-colored car with a white top drove by heading south toward Grand Avenue. (1 RT at 102-04, 129-31, 150-52, 259.) Right after the car went past, Washington heard gunshots and saw flames and a gun sticking out from the rear window on the passenger side of the car. (1 RT at 101-05.) Washington put his car in reverse and sped backward down the block, while Bradford ran from the scene. (1 RT at 105-06.) When it looked like the car was gone, Washington drove back down the street and started looking for his cousin. (1 RT at 106.)

King, who had also heard the gunshots, leaned over from the passenger seat, put Bradford's car in gear, turned the steering wheel, and pressed the gas pedal with one of his hands to get away. (1 RT 128-32.) After reaching the corner of Elm Street and Harris Avenue, King moved over to the driver's seat, turned the car around and drove back to where the shooting had occurred. (1 RT at 132-33.)

When Bradford heard shots, he took off running through a field and then down an alley toward Harris Avenue. (1 RT at 150, 153.) As he was running, Bradford realized that he had been shot. (1 RT at 154.) Within a couple of minutes, Bradford heard police sirens and saw police lights, and he headed back to Elm Street holding his right hand, which had been hit by a bullet and was bleeding. (1 RT at 108-09, 130, 135, 154-58.) Bradford laid down on the ground in the front yard of the house at 3813 Elm Street where brothers Brandon Boyer and Greg Speece lived. (1 RT at 109-10, 243, 349; 2 Reporter's Transcript ("2 RT") at 530-31.)

At the time of the shooting, Officer John Hosmer of the Sacramento Police Department was just around the corner in his police car in the parking lot of the Grand High School Police Department, located on the north side of Grand Avenue between Huron and Elm Streets and south of Harris Avenue. (1 RT at 164-65.) Hosmer heard what sounded like five to ten gunshots in rapid succession coming from east of his location. (1 RT at 166, 169.) Therefore, with all the lights to his vehicle turned off, Hosmer pulled his patrol car to the front entrance of the parking lot where he had an unobstructed view to the east and west down Grand Avenue. (1 RT at 166.)

Within a matter of seconds of hearing the gunshots, Hosmer saw car headlights coming south down Elm Street toward Grand Avenue. (1 RT at 167.) Hosmer observed the car turn westbound on Grand Avenue and then northbound on Huron Street. (1 RT at 167.) At that point, Hosmer turned on the headlights for his car and started following the vehicle. (1 RT at 168.) As Hosmer was trying to catch up with the car, it pulled over and parked in front of a residence at 3840 Huron Street. Two black males wearing dark clothing (i.e., black, dark blue, or dark green) got out of the vehicle and walked to the south side of the home by the fence. (1 RT at 168, 171.) One of the men appeared to have a long object in his hand. (1 RT at 170.) After tossing the long object over the fence, both men climbed over the fence. (1 RT at 171.)

Hosmer reported, via radio, that the two men were fleeing eastbound from that location. He then drove up Huron Street to Harris Avenue and proceeded into the alley between Huron and Elm streets. (1 RT at 173.) Hosmer shined his light down the alley and saw a black male climbing over the back fence of the residence at 3841 Elm Street, knocking down a few fence boards in the process. This person "match[ed] somewhat" the description of the two men Hosmer had seen in front of the residence at 3840 Huron Street (1 RT at 173-74.)

In an effort to try and contain the two fleeing suspects as best as he could until the other units arrived, Hosmer proceeded to the intersection of Elm Street and Harris Avenue and waited to see if anyone "popped out on the street at that point." (1 RT at 174, 177.) Hosmer waited for 30 to 60 seconds, but he did not see anyone appear. (1 RT at 176.) He then went back and shined his spotlight down the alley again for another 30 to 60 seconds, but Hosmer did not see anyone. However, when Hosmer returned to the intersection of Elm Street and Harris Avenue, he saw co-defendant Adams squatted down on the sidewalk. (1 RT at 177-78.) Hosmer asked Adams what he was doing, and Adams told the officer that he had just been shot at. (1 RT at 178.)

Hosmer then headed back to the alley for a third time. This time because the perimeter was set up and the area was contained, Hosmer got out of his vehicle and headed southbound through the alley with his flashlight, looking in the backyards of the adjoining homes. (1 RT at 179.) In the yard at 3840 Huron Street where Hosmer had observed the two men jump the fence and the one man toss a long object over the fence, he spotted a rifle in the southwest corner of the yard. (1 RT at 179-80.)

Hosmer went into the yard and retrieved a .22 Lightning rifle along with a black jacket that was on the ground about 10 feet away from the gun. (1 RT at 180, 272.) Hosmer checked to see if the rifle was loaded and found a live round in the chamber. (1 RT at 185.) As Hosmer was securing the weapon, the sheriff's helicopter that was overhead at the time, asked Hosmer over the radio if there were any plainclothes officers in the yard with him. The officers in the helicopter then told Hosmer that there was another person in the yard on the north side of a shed. (1 RT at 185-86.)

Around that time, Officer Randy Lozoya and his partner, Orland Morales, responded to Hosmer's call and went to 3840 Huron Street where they found a late model white over blue Chevrolet Caprice against a chain link fence. (1 RT at 260-61, 292.) The car's engine was still running. (1 RT at 262, 292.) Lozoya and Morales rushed into the backyard through the gate on the north side of the house and, along with Hosmer, they approached the shed in the yard. The officers spotted petitioner, who had been hanging onto the fence, sweating and seemingly exhausted, and ordered him to get down on the ground, and then they arrested him. (1 RT at 185-86, 262-63, 266-67, 292-94.) Petitioner's hands were covered in what appeared to be bodily fluids, and, after he was taken to the patrol car, Morales saw petitioner make physical movements like he was vomiting on more than one occasion. (1 RT at 294-95.) However, Hosmer was not able to positively identify either petitioner or Adams as the two men who jumped out of the car and hopped the fence into the backyard of the house at 3840 Huron Street. (1 RT at 187.)

When Lozoya was leaving the backyard through the gate, he saw a .38 snub nose revolver laying on the grass to the north side of the driveway in the front yard. (1 RT at 266, 269.) Lozoya examined the weapon and noticed that it contained four empty shell casings. (1 RT at 267-68.)

Officer Keith Hoversten and his partner arrived on the scene within about one minute and took up a position on the perimeter of the area near the corner of Grand Avenue and Elm Street. (1 RT at 252.) Almost immediately, a group of people flagged down the officers and told them that someone (Bradford) had been shot and that the victim was at a house on Elm Street. (1 RT at 242.) The officers then went to that location. (1 RT at 242-43.) Hoversten asked Washington if he had seen what happened and if he knew who had shot at them. Washington told the officers that "he figured it was probably the Nogales Crips because there had been a feued going on over the last few months between Nogales and Elm Street." (1 RT at 246.)

Sergeant Pamela Seyffert also responded to Hosmer's call. When she arrived at the intersection of Elm Street and Harris Avenue, she encountered Adams crouched down in a lot of unkempt weeds or grass in the yard of the house on the southwest corner. (2 RT at 301-03, 585, 590-92.) From the moment Seyffert first spotted Adams in the light from her patrol car's headlights, he looked "kind of shocked" and "nervous." (2 RT at 303.) Seyffert pulled over and searched Adams for weapons before placing him in the backseat of her patrol car, without handcuffs, while she ran computer checks on the name he had provided to her. (2 RT at 302-04.) While Seyffert was running those checks, she heard noises which sounded like Adams was "shuffling his feet around a lot" in the back passenger compartment. (2 RT at 304.) Subsequently, Adams was moved to another police car, and Officer Tim McMahan transported him to the Hall of Justice to be interviewed. (2 RT at 304-05, 331.)

Immediately after Adams was transferred to McMahan's police vehicle, Seyffert searched the back passenger compartment of her patrol car. (2 RT at 306.) Seyffert found what looked like a baby's sock shoved between the Plexiglass and the steel cage at foot level. (2 RT at 308.) Inside the sock, Seyffert found two .40 caliber Speer model bullets. (2 RT at 308-10.)

Later that night, Officer Mitchell Marquez found three expended shell casings in the middle of Elm Street just south of the driveway to the home at 3813 Elm Street. (1 RT at 251.) One of the casings was a .40 caliber casing manufactured by Speer. (1 RT at 255-56.) The other two were .22 caliber casings with the letter "C" stamped on them. (1 RT at 256-57.) Marquez also found a bullet hole in the trunk of Bradford's car. (1 RT at 157-59, 258.) Additionally, during the search of the backyards along the alley, the police also found a loaded Sig .40 caliber handgun near the gate in the southeast corner of the yard at 3837 Elm Street, the house just to the south of 3841 Elm Street. (1 RT at 189-90.)

Tanya Atkinson, an identification technician for the Crime Scene Investigations Unit, tested both petitioner and Adams for gunshot residue. (2 RT at 354-55.) She recalled that petitioner had bodily fluid, which she believed was mucous, on his hands when she tested him, and she did her best to "work around" the fluid. (2 RT at 356, 363.)

Kathleen Modeste, who worked in forensic identification for the police department, lifted six fingerprints from the Chevrolet Caprice found in front of the house at 3840 Huron Street. (2 RT at 369-71.) Modeste also tested the car for gunpowder residue, and she found a bullet casing on the left rear floorboard of the car. (2 RT at 371-74, 379-80.)

At the police station, investigators examined two cell phones that had been recovered at the scene. (2 RT at 338-48.) One phone, a Samsung model, had been recovered from Adams and was included in his property bag that had been taken to the station by McMahan. (1 RT at 274-75; 2 RT at 333, 340.) While at the station, Adams told the police that the phone number for his cell phone was 912-7436. (2 RT at 340-41.) The police checked the outgoing call log for this phone and found that a call had been made at 9:30 p.m. on April 12, 2005, to the telephone number of 289-8391, which turned out to be petitioner's cell phone number. (2 RT at 341, 343, 346, 498-99.) Police also discovered that earlier the same evening, at 5:44 p.m., a text message had been sent to petitioner's phone which read, "what's up, Crip?"

(2 RT at 346.)

Petitioner's cell phone, a Nokia model, had been found in one of the pockets of the black jacket that Hosmer found by the .22 Lightning rifle in the backyard of 3840 Huron Street. (1 RT at 180, 272-73; 2 RT at 343.) Police verified that the phone number for this cell phone was 289-8391, the same number noted in the call log for Adams' cell phone at 9:30 p.m. on April 12, 2005. (2 RT at 347, 499.) The incoming log for this phone listed a call from Adams' cell phone at ...


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