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Sadiq Saibu v. Brenda M. Cash

August 5, 2011

SADIQ SAIBU,
PETITIONER,
v.
BRENDA M. CASH, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Cathy Ann Bencivengo United States Magistrate Judge

[Doc. No. 1]

WRIT OF HABEAS CORPUS ORDER DENYING PETITION FOR

I. INTRODUCTION

Sadiq Saibu (hereinafter "Petitioner" or "Saibu"), a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his San Diego County Superior Court conviction in case number SCD195049 of one count of conspiracy to commit robbery, one count of false imprisonment, three counts of robbery, and two counts of unlawful driving or taking of a vehicle. (Lodgment No. 1, 665-67.) Petitioner contends his federal constitutional rights were violated because 1) the trial court improperly excluded third-party exculpatory evidence of other robberies, 2) the accomplice jury instruction lessened the prosecution's burden of proof, 3) there was insufficient evidence to corroborate accomplice testimony, and 4) the trial court improperly sentenced him to a consecutive sentence on count two. (Petition ["Pet."] at 6-9; Exhibit 1 at 1-3.)

The Court has considered the Petition and Exhibit, Respondent's Answer and Memorandum of Points and Authorities in Support thereof (hereinafter "Respt's Mem."), Petitioner's Traverse, and all the supporting documents submitted by the parties. Based upon the documents and evidence presented in this case, and for the reasons set forth below, the Court DENIES the Petition.

II. PROCEDURAL BACKGROUND

On August 21, 2006, the District Attorney of San Diego County, California filed a Second Amended Consolidated Information ("Information") with regard to three bank robberies - the August 13, 2005, Wells Fargo Bank robbery on El Cajon Boulevard, the August 19, 2005, World Savings Bank robbery in La Mesa, and the August 29, 2005, Wells Fargo Bank robbery on Black Mountain Road - charging Petitioner*fn1 with one count of conspiracy to commit bank robbery, a violation of California Penal Code ("Penal Code") section 182(a)(1) (count one); one count of kidnapping for robbery, a violation of Penal Code section 209(b)(1) (count two); three counts of robbery, a violation of Penal Code section 211 (count three [August 13 Wells Fargo Bank robbery], count six [August 19 World Savings Bank robbery], and count nine [August 29 Wells Fargo Bank robbery]; three counts of unlawful taking and driving a vehicle, a violation of California Vehicle Code section 10851 (counts four, seven, and eleven); and one count of assault with a firearm, a violation of Penal Code section 245(a)(2) (count ten). (Lodgment No. 1 at 30-44.) It was further alleged that as to the kidnapping and robbery charges, Petitioner personally used a firearm, a violation of Penal Code section 12022.53(b) (counts two, three, six and nine). (Id.)

Following trial, Saibu was convicted of: (1) conspiracy to commit bank robbery (count one); (2) false imprisonment (Penal Code § 236) as a lesser included offense of count two (kidnapping for robbery), with the jury deadlocked on the personal use of a firearm allegation; (3) robbery (count three), with the jury deadlocked on the personal use of a firearm allegation ; (4) robbery (count six), with the jury deadlocked as to the personal use of a firearm allegation; (5) unlawful taking and driving of a vehicle (count seven); (6) robbery (count nine), with a true finding on the personal use of a firearm allegation (§12022.53(b)); and (7) assault with a firearm (count ten), with a true finding on the armed with a firearm allegation (§12022(a)(1). (Lodgment No. 1, 665-677.) The jury found Petitioner not guilty of kidnapping for robbery (count two). (Id. at 670-71.)

On February 9, 2007, the trial court sentenced Saibu to a total state prison term of sixteen years and four months, consisting of a three-year midterm on count nine, a consecutive ten year term for the firearm enhancement allegation related to that count, consecutive eight month terms on counts two and seven*fn2 , and consecutive one-year terms on counts three and six. (Lodgment No. 1 at 545-46,682.) The court stayed execution on the remaining counts and allegations under section 654. (Id. at 545.)

Saibu appealed his conviction to the California Court of Appeal for the Fourth Appellate District, Division One. (Lodgment No. 3.) On January 14, 2009, the Court of Appeal modified the restitution award and otherwise affirmed the judgment. (Lodgment No. 6.) Petitioner filed a petition for review in the California Supreme Court, which was denied without citation of authority on April 15, 2009. (Lodgment Nos. 7-8.)

On April 19, 2010, Petitioner filed the instant petition for writ of habeas corpus with this Court. [ECF No. 1.] The parties consented to Magistrate Judge jurisdiction. [ECF Nos. 1,10.] On August 30, 2010, Respondent filed an Answer. [ECF No. 11.] Petitioner filed a Traverse on October 15, 2010. [ECF No. 15.]

III. FACTUAL BACKGROUND

This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 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 such facts, are entitled to statutory presumption of correctness). The facts as found by the state appellate court are as follows:

A. The People's Evidence

1. August 13 Wells Fargo Bank Robbery on El Cajon Boulevard At around 9:15 a.m. on August 13, Lucy Verduzco went to the Wells Fargo Bank on El Cajon Boulevard in San Diego to make a deposit. As she was leaving the bank through the south doors, a gray or light blue medium-sized, four-door car spednto the parking lot and stopped in front of her. Three armed African-American men got out of the car. All three were dressed in dark clothing; they were wearing hooded sweatshirts and bandanas.

The three men ran up to Verduzco, and the driver of the car ordered her to go back into the bank. Verduzco complied.

The men ran into the bank through the south door. Two had shotguns or rifles; the other had an AK-47. They pointed the weapons at everyone in the bank and ordered everyone to get down on the ground. One of the men went down the teller line, pointing his weapon at each teller, saying, "Give me the [motherfucking] money. Hurry up. Give it to me now." Two of the tellers handed the man cash from their drawers. The man put the bundles of cash into a black bag. One of the tellers pressed the silent alarm.

A second man waved a gun in the face of Jonahan Dadbin, trying to get him to open the security door to the teller windows and vault room, and demanded in an aggressive fashion that Dadbin open the door. Dadbin refused.

After a few minutes, the three men left the bank through the south door and got into a light-colored car. As the men fled the scene in the car, one of the bank employees wrote down a partial license plate number. Michael Miranda, a San Diego Police Department patrol officer, responded to the call regarding the robbery and searched the surrounding area for a vehicle matching the description given by witnesses. At around 10:00 a.m., he found a gray, two-door Acura parked about two blocks south of the Wells Fargo Bank. The front and rear passenger doors were open. Officer Miranda impounded the vehicle.

2. August 19 World Savings Bank robbery in La Mesa

On August 19, between 8:00 and 8:15 a.m., Javier Banuelos Venegas drove his purple 1995 Ford Windstar minivan carrying California license plate No. 5CMW218 to a Shell gas station and minimart in National City. Banuelos pulled into the parking lot, left his keys in the ignition with the engine running, and went inside the minimart to buy a cup of coffee. When he returned to the parking lot, Banuelos found his minivan was gone.

Later that morning, at around 9:20 a.m., Banuelos's minivan pulled into the parking lot of the World Savings Bank located on Lake Murray Boulevard in La Mesa and stopped with its rear facing the employee break room. Three African-American men, including the driver, got out of the van. The men were wearing dark blue and black clothing consisting of sweatpants, hooded sweatshirts and bandanas. One of them wore a medium to dark blue sweatsuit with golf raglan sleeves, black shoes, and a brown and white bandanna. Another man was wearing gloves which were cut off at the knuckles. All three men were carrying shotguns or rifles. One of the men was similar in skin color, height and built[sic] to Valentino. Another was about the same height and build as Saibu.

The men entered the bank holding their weapons. One said, "This is a robbery. Everybody get down on the ground." One of the customers who was on the phone told the person on the other end of the line that a robbery was in progress and to call the police.

One of the armed men jumped on the teller counter, went to where the tellers were standing, and opened the security door for the other two armed men, who walked down the inside of the teller line in opposite directions. One of the men opened the teller drawers, removing the cash from the drawers and placing it in a duffel bag. One directed Jeanene Krahling, the bank's vault teller, to get the keys to the vault. After Krahling got the keys, the man held his gun to her head and told her to hurry up. She preceded him into the vault, pulled out the locker tray, and he grabbed the money from the tray. The man put the money in a black bag, thanked Krahling, and exited the vault. As all three men were leaving the bank, one of them said, "Have a nice day." The men took $14,905 during the robbery.

La Mesa police officers responding to the call about the robbery found Banuelos's minivan parked about three blocks away from the bank. One of the vehicle's sliding doors was open.

3. August 29 Wells Fargo Bank robbery on Black Mountain Road On August 29, at around 7:00 a.m., DeWayne Cummings, Sr. (Cummings Sr.) was getting ready for work when he heard a car horn across the street. He looked outside and saw a white, box-shaped car. He woke up his son, DeWayne Cummings, Jr. (Cummings), and opened the front door to allow in Saibu, who was one of his son's friends. Cummings Sr. saw Kinsel sitting on the couch. Saibu had been to the house several times.

Later that morning, at around 9:30 a.m., three African-American men armed with rifles and wearing dark clothing, hooded sweatshirts and bandannas entered the Wells Fargo Bank on Black Mountain Road in Mira Mesa. One was carrying a duffel bag. One said, "You're being robbed. This is a robbery." Cristina Rantael, the bank's service manager pressed the silent alarm.

One of the men jumped over the teller counter and let the other two men in through the security door. One man went down the teller line, opened all the registers, took the money, and put it in a bag.

On of the men told Rantael to open the main vault. Rantael asked teller Cyrus Safa, who had the keys, to go with them to the vault. Branch manager Marian Tyler also went with them after one of the men pointed a rifle at her head and ordered her to open the security door leading to the vault room.

As Rantael was trying to open the vault door, one of the men held his rifle to her head, started counting backwards, and stopped counting when he reached two because Rantael opened the door. One of the men grabbed the money from the vault and yelled to another to get the "moneybag." The man put his gun under his arm and put the money into a duffle bag. The money that the men took contained dye packs that explode with tear gas and red dye.

The men ran out of the bank and got into a silver Mazda 626. On their way out, one said, "Have a nice day."

After the men left the bank, the dye packs exploded. When police responded to the scene, they found a medium size duffel bag in the parking lot that contained $82,133. The money in the bag was stained with red dye and smelled like tear gas.

At around 10:00 a.m. that same morning, August 29, Elliott Woodward, a college student, was sitting in his parked car on a side street near Mira Mesa Boulevard. Woodward saw people wearing dark clothing get out of a small white car, run across the street, and get into a small red car, which then drove past Woodward's car. Finding their behavior suspicious, Woodward wrote down the license plate number of the red car, then walked over to the white car. The engine was still running, the doors were open, and it appeared to have been hotwired. Woodward flagged down a passing police car. An officer impounded the white car, which was a Mazda 626.

In the afternoon on August 30, James McGhee, a detective withthe San Diego Police Department robbery unit telephoned Saibu on Saibu's cell phone, No. (619) 709-4019. Detective McGhee told Saibu that his name had come up in connection with a series of bank robberies that were under investigation. Saibu told Detective McGhee he was in Mississippi with his family, he had been there about a week, and he had received a call from Cummings Sr., who told him something was going on with Saibu's cousin. Saibu said he did not know what part of Mississippi he was in, because he did not know his way around there, and his family was at work. He indicated to Detective McGhee that when they returned, he would ask them and call Detective McGhee back. Detective McGhee told Saibu he wanted to verify that Saibu was in Mississippi and asked Saibu to step outside and look at an address or pick up a piece of mail and check out the address. Saibu refused and told Detective McGhee that Cummings was not involved.

When Detective McGhee then asked Saibu who was involved, Saibu responded, "Rachel [Kinsel] and Ace [Valentino]." Saibu added that "Ace" was someone named Antonio, he did not know Antonio's last name or where he lived, and he had only met Antonio on a couple of occasions. Saibu said he would return from Mississippi on Friday and would meet with Detective McGhee in person upon his return. Saibu complained that he was hearing that he was the mastermind. He also told Detective McGhee that Cummings Sr. told him "[W]hen you guys find me, you're gonna shoot me on sight or some kind crap like that." Saibu also said he was told he would be thrown in jail and given "two life sentences." Saibu did not contact Detective McGhee that Friday as he said he would.

Detective McGhee eventually interviewed Saibu at police headquarters and told him he wanted to talk about some robberies. Detective McGhee asked Saibu where he had been. Saibu replied he left for New York in June or July and remained there until around Christmas time. Saibu then changed the starting date of his New York trip to "July or August." Saibu said he was visiting with a childhood friend and with his father. When Detective McGhee asked whether he knew a woman named Rachel, Saibu said he did not. Detective McGhee then asked Saibu whether he knew a woman named Rachel Kinsel. Saibu said he had never heard that name before. When Detective McGhee told Saibu that his phone number was in Kinsel's cell phone book, Saibu said he did construction work and gave his business cards to a lot of people. When Detective McGhee asked Saibu whether he knew Coleman, Saibu indicated he did not. Saibu gave the same answer when asked whether he knew a man named "Ace" or Valentino, or Cummings, or "Mike [Squire]." When Detective McGhee showed Saibu a photograph of Valentino, Saibu said he looked like a dude he had met or seen at a check cashing place a week earlier.

When Detective McGhee asked Saibu whether his fingerprints would be found in Kinsel's car, Saibu said they would be on the stereo and the inside of the car, and they could be in the trunk. Detective McGhee asked whether Saibu had a cell phone, and Saibu replied he had several cell phones and had lost a couple of them in New York, including a phone number that began with "709." When Detective McGhee referred to the telephone conversation he had with Saibu the previous August, Saibu first said he did not remember the conversation. He then said he thought it was a joke.

4. Kinsel's plea agreement and accomplice testimony re the bank robberies

Through the license plate information that Woodward provided, the police determined that the red car was a 1993 Mazda owned by Kinsel. Officers went to Kinsel's apartment in Imperial Beach, where they saw the red Mazda parked about 100 to 150 yards from where she lived. They searched Kinsel's bedroom and found $1,026 inside a foam container. The cash was stained with red dye.

In the afternoon on August 29, Kinsel was arrested for the August 13, 19 and 29 bank robberies. Kinsel eventually admitted she was the getaway car driver for all three robberies. Charges were filed against her, and counsel appointed to represent her.

On September 9, after consulting with her attorney, Kinsel signed an agreement titled "Agreement Regarding the Initial Meeting Between Potential Cooperating Individuals and Prosecution," under which she agreed to participate in a "free talk" interview at the district attorney's office where she would provide details about the crime.

On January 6, 2006, on the advice of counsel, Kinsel signed a second agreement, titled, "Office of the District Attorney Cooperating Individual [] Agreement" (CI agreement) and entered into a plea agreement. Kinsel pleaded guilty to three counts of armed robbery, each one a "strike," with an agreed-upon sentence range of four to seven years, in return for truthful testimony at trial. Under the CI agreement, the original charges would be reinstated if her testimony was not truthful, and she would be charged with perjury.

Kinsel testified that in August Coleman was her boyfriend. Cummings was one of Coleman's friends. In March Coleman had introduced Kinsel to his cousin, Valentino. Kinsel and Valentino became good friends, and they spoke on the phone about once a day. Coleman had also introduced Kinsel to Saibu and Squire.

Early in the morning on August 13, while Kinsel was at Coleman's house, Valentino approached her and said he, Saibu and Squire were going to rob a bank. Valentino offered her $1,000 to give them a ride after the robbery. Kinsel owned a 1993 burgundy Mazda MX6. She retrieved her car keys and went into the living room; Saibu and Squire were there. Two shotguns and a long handgun were on the floor. Sometime between 8:00 a.m. and 9:00 a.m., Valentino indicated it was time to leave and told Kinsel that he, Saibu and Squire were going to the bank in a stolen car and that she should follow them in her car. Kinsel followed them. After stopping at Polk Avenue and 30th Street, they directed Kinsel to wait there, and then they drove away. Saibu asked that she leave her car trunk open so they could put the guns in the trunk when they returned.

When Valentino, Saibu and Squire returned about 15 to 20 minutes later, they got into her car and she drove them to Coleman's house. During the return trip, appellants discussed how they wished they could have "hit the ...


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