The opinion of the court was delivered by: Josephine Staton Tucker United States District Judge
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS BROUGHT PURSUANT TO 28 U.S.C. § 2254
Before the court is the Petition for Writ of Habeas Corpus ("Petition") filed by Petitioner Daniel Christopher Brown, a state prisoner who is proceeding pro se. The Petition is brought pursuant to 28 U.S.C. § 2254 ("§ 2254"). Its sole claim is that the trial court erred when it denied Petitioner's rights under the Sixth Amendment pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). (Petition at ¶7.a.). The California Court of Appeal upheld the trial court's decision and the California Supreme Court denied review. The California Court of Appeal's decision to uphold the trial court's denial of the defense's Batson motion was neither an unreasonable application of clearly established federal law nor based on an unreasonable determination of the facts, so the Petition is denied and dismissed with prejudice.
While this decision was pending, Petitioner filed a Motion for Stay and Abeyance requesting that the court add three new claims to the Petition: 1) the trial court improperly imposed consecutive sentences, 2) trial counsel rendered ineffective assistance by failing to object to the imposition of consecutive sentences; and 3) trial counsel rendered ineffective assistance by failing to bring a motion to sever Petitioner's trial from that of his co-defendant. (Doc. 16 at 2--3.) The Court denied this motion on February 22, 2010, finding that the claims did not "relate back" to the Batson claim, as required under Mayle v. Felix, 545 U.S. 644 (2005), and could therefore not be attached without first being exhausted in state court, an impossibility because they had become time-barred. (Doc. 16 at 2--3.)
In 2007, a Los Angeles Superior Court jury found Petitioner guilty of three counts of attempted second degree robbery. The jury also found true the sentence enhancement allegations that Petitioner was armed with and personally used a firearm. (See Clerk's Transcript on Appeal ["CT"] 129--31; 5 Reporter's Transcript on Appeal ["RT"] 1169--70.)
The trial court sentenced Petitioner to state prison for a determinate term of 20 years. (CT 143--44; 5 RT 1210--11.)
Petitioner appealed his conviction and sentence to the California Court of Appeal raising, inter alia, a claim generally corresponding to the Batson claim alleged in his federal habeas petition at issue here. (Respondent's Notice of Lodgment ["Lodgment"]
A.) In an unpublished decision filed on January 29, 2008, the California Court of Appeal rejected Petitioner's claims and affirmed the judgment. (Id. D.) Petitioner's ensuing petition for review to the California Supreme Court raising the same claims was summarily denied without comment or citation of authority on April 9, 2008. (Id. E, F.) Petitioner raised no collateral challenges to his conviction in state court.
In July of 2009, Petitioner filed the Petition for Writ of Habeas Corpus by a Person in State Custody considered here. For purposes of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this court evaluates "the state court's last reasoned decision as the basis for the state court's judgment," that of the California Court of Appeal in this case. Ali v. Hickman, 584 F.3d 1174, 1181 n.5 (9th Cir. 2009).
III.SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL
Because Petitioner is not challenging the sufficiency of the evidence to support his conviction, the following summary is taken from the "Facts" section of the California Court of Appeal opinion:*fn1
At 1:00 a.m. on March 3, 2006, Roque Santos was driving home in his red Astro van. When he left the van to open a gate, an African-American man pointed a gun at him, told him to walk away, and took the van.
At approximately 8:00 a.m. on March , 2006, an A.T. Systems armored car carrying more than $30 million arrived at a branch office of the Farmers & Merchant Bank in Long Beach. Gabriel Perez drove the armored car, which also contained Jaime Arrieta. Accompanying the armored car was a marked A.T. Systems "chase" truck driven by Anthony Del Valle. Del Valle was assigned to protect Arrieta, who acted as a "hopper," that is, transported money to and from the armored car when it made stops.
It was raining as Perez backed the armored car up to within a few feet of the bank door. Del Valle parked his truck nearby. After the bank manager unlocked the bank door, Arrieta and Del Valle moved money from the armored car into the bank. In accordance with A.T. Systems procedure, Perez remained in the armored car. Inside the bank, Arrieta and Del Valle collected money that they were to transport elsewhere, and Arrieta pushed a cart bearing the money outside to the armored car.
Arrieta testified as follows: While Del Valle stood inside the bank and held the door open for him, Arrieta moved the cart to the rear of the armored car. A man wearing a mask-who was identified by other witnesses as [Petitioner]-approached Arrieta, pointed a rifle at his chest, and said, "'Give me the money.'" A second masked man also appeared and pointed a rifle at Arrieta. Del Valle emerged from the bank and fired his gun at the two men, hitting [Petitioner] three times in the stomach. [Petitioner] fell to the ground while his accomplice ran to a red or burgundy van, accompanied by a third man. The two men entered the van and drove away. The armored car also left.
Del Valle testified that after he opened the bank door for Arrieta's cart, he retreated momentarily into the bank to retrieve his umbrella. From within the bank he looked through the door-which had remained open- and saw three armed men confront Arrieta. He fired his gun at the three men. The man closest to Arrieta fell down, and the other two men fled in a red van.
Perez testified that after Arrieta left the armored car, he remained in the driver's seat looking over paperwork. He noticed three men dressed in black running toward the armored car, and shouted an alarm to Arrieta. He soon heard Arrieta scream, "Take whatever you want," followed by shots. When he saw two of the men running from the armored car, he surmised that the third man had entered the open rear door of the armored car. Perez drove the armored car away from the bank to find help and to "bounce [the third man] around until he was out of [the armored car]." Perez saw the two fleeing men enter a red van, which he unsuccessfully tried to intercept. He then returned to the bank.
Susan Stencil, who operates a business near the bank, testified as follows: While she was standing across the street from the bank, she saw the armored car, and noticed a red or "maroonish" van drive slowly by the front of the bank. The van soon returned and stopped in the middle of the street. A black man wearing a mask and carrying a rifle left the van and walked quickly toward the armored car, followed by two more men from the van. She took cover behind a truck and heard shots.
Investigating officers found two loaded rifles outside the bank. They also discovered Santos's van in an alleyway in Long Beach. [Derrick Adams] Willie's*fn2 fingerprints matched prints on a gun found in the van, and DNA testing identified Willie as a probable source of genetic material on the gun.*fn3 When Willie was arrested, he stated that he was a member of the East Coast Crips gang.
Long Beach Police Officer Asif Khan testified that he and his partner arrived at the bank at approximately 8:30 a.m. on March 3, 006.*fn4
According to Khan, the scene was "very chaotic." The officers found [Petitioner], who was wounded, as well as numerous shell casings and two long-barreled rifles. Khan interviewed Perez and Arrieta, each of whom said that the three perpetrators had long-barreled guns.
Long Beach Police Detective Steven Prell testified that when he
arrived at the bank on the date of the crime, he directed a technician
to place numbers on shell casings found at the site.*fn5
Approximate[ly] 48 Long Beach police officers and three FBI
agents were present when he arrived.*fn6
The standard of review applicable to Petitioner's claim is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"):
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 ...