The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS (2) DENYING CERTIFICATE OF APPEALABILITY
On December 28, 2009, Chad Thomas Elie ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for attempted murder, assault with a firearm, and unlawful brandishing of a firearm. (Doc. No. 1 at 2; Lodg. No. 6 at 4.) Petitioner contends (1) that the trial court committed prejudicial error in denying his motion to bifurcate gang enhancement allegations; (2) that the trial court violated his Sixth Amendment right to a jury trial in denying a new trial motion; (3) that there was insufficient evidence to find him guilty of murder and brandishing a firearm; and
(4) that the imposition of an upper-term sentence was contrary to Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). (Doc. No. 1 at 6-9.) On July 6, 2010, Petitioner filed his First Amended Petition, naming the Attorney General of California as an additional respondent. (Doc. No. 11 at 1.) On April 8, 2011, the magistrate judge issued a Report and Recommendation that the Court deny Petitioner's First Amended Petition. (Doc. No. 27.) Petitioner did not file objections by the April 22, 2011 deadline set by the magistrate judge. For the reasons set forth below, the Court DENIES Petitioner's First Amended Petition and adopts the Report and Recommendation.
Petitioner was convicted of unlawfully brandishing a firearm, attempted murder, and assault with a firearm. (Lodg. No. 6 at 1-2.) After the jury rendered its verdict, Petitioner filed a motion requesting a new trial based on the proffered testimony of two witnesses who did not testify at trial. (Lodg. No. 6 at 7.) The motion was denied because the two witnesses were not newly discovered and their testimony would not have resulted in different verdicts. (Id.)
Petitioner appealed his conviction to the California Court of Appeal. On November 6, 2008, the Court of Appeal affirmed the judgment. (Lodg. No. 6.) Petitioner filed a petition for review in the California Supreme Court. (Lodg. No. 7.) The state supreme court denied the petition without comment on February 18, 2009. (Lodg. No. 8.) Petitioner then filed this federal habeas petition. (Doc. No. 1.)
This Court gives deference to state court findings of fact and presumes them to be correct. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The relevant facts as found by the state appellate court are as follows:
Elie was charged with offenses arising from three shooting incidents, occurring on September 6, 2003, July 15, 2004, and July 31, 2004. The latter two incidents were allegedly connected with the activities of a gang in Lemon Grove called Murder Krew (MK). After a jury trial, Elie was convicted of the offenses charged for the September 6, 2003, and July 31, 2004 incidents, but was not convicted of the offenses charged for the July 15, 2004 incident.
The September 6, 2003 incident involved gunshots fired at a party in Crest by several individuals, including Elie. Elie was convicted of misdemeanor unlawful exhibition of a firearm for this incident.
The July 15, 2004 incident occurred at about 10:00 or 11:00 p.m. when a group of friends (including Marlon Major (Marlon), Joseph Brown, Ronald McGee, and Joseph Barajas II) were sitting in or standing by two vehicles in front of the Barajas family residence in Lemon Grove. Several other vehicles arrived in front of the residence. An occupant of one these vehicles yelled "MK, finish you off" and fired two or three gunshots out the passenger window. A bullet hit the windshield of the vehicle occupied by Brown. Marlon identified Elie as the person who yelled the gang statement and who shot the gun, and identified Elie's brother (Micah Elie (Micah)) as the driver of the vehicle in which Elie was a passenger. McGee also identified Elie and Micah as being in the car from which the shots were fired. Brown and Barajas were unable to identify the perpetrators. Micah testified on his own behalf, denying any involvement in the shooting. Micah also presented an alibi defense via his girlfriend, who testified she and Micah were together that night celebrating their anniversary.
For the July 15th incident, Elie and Micah were charged with attempted murder, discharging a firearm at an occupied vehicle, and assault with a firearm, with various gun and gang enhancement allegations. The jury acquitted Micah of all charges; acquitted Elie of attempted murder; and deadlocked on the remaining charges against Elie for this incident.
The third incident, which occurred around 9:00 or 10:00 p.m. on July 31, 2004, involved a shooting of Michael Major (Marlon's brother) in the driveway of the Barajas residence. During this incident, a group of males arrived at the driveway in a vehicle. One of the males yelled "MK," and the group then began shooting. Major, who was standing in the driveway about six feet from the assailants, was shot in the leg as he fled up the driveway. Major was in the hospital for one day. The bullet remains in his leg because it was not possible to remove it without risking amputation. He was in substantial pain and for about one month walked with a severe limp. At the time of trial his activities continued to be restricted because of the injury.
At trial, Major identified Elie as one of the shooters, testifying that he recognized Elie's voice saying "MK" and also recognized his face. Elie presented an alibi defense, with his father and his brother's girlfriend testifying that he was at his residence celebrating his brother's birthday the night of July 31, 2004.
For this incident, Elie was convicted of attempted murder and assault with a firearm, with true findings on personal firearm discharge causing great bodily injury and gang enhancements.
Elie received a nine-year upper term sentence for attempted murder, and a 25-years-to-life sentence for the personal firearm discharge causing great bodily injury enhancement. (Lodg. No. 6 at 3-4.)