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Frank Eli Heard v. F Gonzalez

June 27, 2011

FRANK ELI HEARD,
PETITIONER,
v.
F GONZALEZ, ET AL., WARDEN
RESPONDENT.



The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge

ORDER DENYING SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS

[ECF No. 31]

I. INTRODUCTION

On September 25, 2009, Petitioner Frank Eli Heard ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). On October 20, 2009, this Court dismissed the case without prejudice because Petitioner failed to name a proper Respondent. (ECF No. 3). On Novermber 20, 2009, Petitioner filed a First Amended Petition. (ECF No. 7). On January 11, 2010, Petitioner consented to the exercise of jurisdiction over the matter by United States Magistrate Judge Louisa S Porter. (ECF No. 13). On January 21, 2010, Defendant filed an Answer to Petitioner's First Amended Petition. (ECF No. 14). On November 24, 2010, this Court granted Petitioner leave to file a Second Amended Petition (ECF No. 33). The Court has construed Respondent's Answer to Petitioner's First Amended Petition as their Answer to Petitioner's Second Amended Petition.*fn1 On January 18, 2011, Petitioner filed a Traverse to his Second Amended Petition. (ECF No. 39).

This Court has reviewed the Petition (ECF No. 1), Respondent's Answer (ECF No. 14), Petitioner's Traverse (ECF No. 39), and all supporting documents. After a thorough review, this Court finds Petitioner is not entitled to the relief requested and RECOMMENDS the Petition be DENIED.

II. PROCEDURAL BACKGROUND

Petitioner was convicted of two counts each of committing attempted willful, deliberate, and premeditated murder pursuant to California Penal Code §§ 664, 187. (Lodgment 1 at 1-2). On January 18, 2008, he was sentenced to a term of 23 years plus 80 years to life.*fn2 Id at 2.

Petitioner filed an appeal to the California Court of Appeal, Fourth Appellate District, Division One. (Lodgement 1). On February 24, 2009 the Court of Appeal affirmed the judgment. Id.

Petitioner filed a petition for review in the California Supreme Court. (Lodgment 2). On May 20, 2009, the petition for review was denied. (Lodgment 3).

On September 25, 2009, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). On October 20, 2009, this Court dismissed the case without prejudice because Petitioner failed to name a proper Respondent. (ECF No. 3). On Novermber 20, 2009, Petitioner filed a First Amended Petition. (ECF No. 7). On January 11, 2010, Petitioner consented to the exercise of jurisdiction over the matter by United States Magistrate Judge Louisa S Porter. (ECF No. 13). On January 21, 2010, Defendant filed an Answer to Petitioner's First Amended Petition. (ECF No. 14). On November 24, 2010, this Court granted Petitioner leave to file a Second Amended Petition (ECF No. 33), and since the sole claim presented in Petitioner's proposed Second Amended Petition (that of denial of a fair trail for failure to admit hearsay statements) is the same claim presented in his First Amended Petition, and Respondent addressed this claim in his Answer to Petitioner's First Amended Petition, the Court shall construe Respondent's Answer to Petitioner's First Amended Petition as their Answer to Petitioner's Second Amended Petition. On January 18, 2011, Petitioner filed a Traverse to his Second Amended Petition. (ECF No. 39).

III. STATEMENT OF FACTS

The following facts are taken from the California Court of Appeal opinion in People v. Heard, No. SCD193832 (Cal. Ct. App. Feb 24, 2009). (Lodgment 1). The Court presumes these factual determinations are correct pursuant to 28 U.S.C.A. § 2254(e)(1). The court stated:

Heard, co-defendant Mills, Ricky Pangelinan, Michael White, Roosevelt White, and Bobby Jones are members of the West Coast Crips gang. The West Coast Crips gang territory includes the Logan Heights area. Michael and Roosevelt White lived in an apartment complex on K street in this area that was a frequent gang hangout.

On January 3, 2005, Jessica Godinez borrowed a white Mitsubishi Galant and drove to Michael White's apartment at around 7:00 p.m. After she arrived, she gave him a ride to cash a check. Godinez told the police that Heard came along, and on their way back they picked up Mills on L Street. Godinez said that later that evening, Heard, Mills, and possibly Michael White borrowed the Mitsubishi from Godinez and were gone for about 30 to 60 minutes.

At about 8:15 p.m. that same evening, San Diego Police Detective Steven Hobbs and Officer Richard McCoy were conducting a traffic stop in West Coast Crips territory. They observed a four-door Mitsubishi Galant containing four African-American males wearing dark-colored clothing commonly worn by West Coast Crip members. As the Mitsubishi approached Detective Hobbs and Officer McCoy, the occupants first looked away with a "deer in the headlights" expression. Detective Hobbs recognized Mills in the front passenger seat based on a traffic stop involving some West Coast Crips in the same car a month earlier.

Shakyla Bell testified that on the evening of January 3, she and some friends were walking to a market on 47th Street when a white four-door vehicle drove by them and someone inside the vehicle said, "What's crackin, cuz?" Bell recognized this as a gang statement commonly used by Crips, but not by the Bloods from her neighborhood. Bell's group ignored the comment, walked into the store, and then walked back to where they were hanging out at a house on "T" Street. The group included Bell, Simon Judge, Terrance Hillman, James Compare, and others.

The white Mitsubishi drove past the "T" Street house. The front passenger, a Black male with a bald head, made eye contact with Compare and then quickly leaned back in the seat. The Mitsubishi sped off, and then quickly turned around and passed by a second time. This time, the front passenger, who was wearing a dark-colored hooded sweatshirt and had braids in his hair fired 6 to 10 gunshots toward the group. Hillman was struck once in the leg, and Judge was struck in the head and hip.

Later that evening, Pangelinan was walking to his girlfriend's house when he ran into a group of his friends, including Heard, Mills, Jones, and Michael and Roosevelt White. While they were walking, Heard told Pangelinan, "I got me one," "I got a slob nigga," which Pangelinan understood to mean that Heard shot a Blood gang member. "Slob" is a derogatory term ...


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