UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
September 23, 2011
MIKE MCDONALD, WARDEN,
The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on May 19, 2011, accompanied by "Petitioner's Memorandum of Points and Authorities in Support of Petitioner's Petition for Writ of Habeas Corpus" ("Pet. Mem.") and exhibits. Respondent filed an Answer on July 8, 2011. Petitioner filed a Reply on August 30, 2011.
After a joint trial with co-defendants Vernon Johnson ("Johnson") and Jonathan Moore ("Moore"), a jury found Petitioner guilty of two counts of willful, deliberate and premeditated attempted murder of Chaundi Grant ("Grant") and Gerald Kelly ("Kelly") (Counts 2 and 3), two counts of assault with a firearm on Grant and Kelly (Counts 4 and 5), and one count of shooting at a motor vehicle (Count 6) (Reporter's Transcript ["R.T."] 3904-10; Clerk's Transcript ["C.T."] 952-58). As to Count 2, the jury found true the allegations that a principal had personally and intentionally used and discharged a firearm which proximately caused great bodily injury (R.T. 3904-05; C.T. 952). As to Count 3, the jury found true the allegations that a principal personally and intentionally used and discharged a firearm (R.T. 3907; C.T. 954). As to Counts 2 through 5, the jury found not true the allegations that Petitioner personally used or discharged a firearm (R.T. 3905-09; C.T. 953, 955-57). As to Count 6, the jury found true the allegation that a principal personally and intentionally discharged a firearm which proximately caused great bodily injury (R.T. 3910; C.T. 958). As to all counts, the jury found true the allegations that the crimes were committed for the benefit of, and at the direction of, or in association with a criminal street gang, with specific intent to promote, further and assist in criminal conduct by gang members, within the meaning of California Penal Code section 186.22(b)(1)(C) (R.T. 3906-10; C.T. 953, 955-58). The trial court sentenced Petitioner to a total term of eighty years to life in state prison (R.T. 5108-10; C.T. 1034-41).
The Court of Appeal modified the defendants' sentences, but otherwise affirmed the judgment (Respondent's Lodgments 10, 12; see People v. Johnson, 2009 WL 3823890 (Cal. App. Dec. 15, 2009)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 16).
The following summary of trial evidence is drawn from the opinion of the Court of Appeal in People v. Johnson, 2009 WL 3823890 (Cal. App. Dec. 15, 2009). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision); Galvan v. Alaska Dep't of Corrections, 397 F.3d 1198, 1199 & n.1 (9th Cir. 2005) (same).
Gabriel Njie pled guilty to an attempted murder charge arising from this case. Mr. Njie admitted allegations a principal was armed in the commission of the crime and the offense was committed for the benefit of a criminal street gang. Mr. Njie was sentenced to 16 years in state prison. Mr. Njie also agreed to testify truthfully and completely at defendants' trial.
A few days before December 30, 2005, Mr. Johnson telephoned Mr. Njie. Mr. Johnson said that a friend had been killed. Mr. Johnson said he had a "chrome .357" and he wanted to "put in some work." Mr. Njie understood this to mean that Mr. Johnson intended to kill some enemies. Mr. Johnson called Mr. Njie again on December 30, 2005. Mr. Njie was asked to join Mr. Johnson in order to "put in some work"; i.e., commit gang violence. Both Mr. Njie and Mr. Johnson were members of the local gang.
Mr. Njie borrowed his girlfriend's burgundy Saturn.
Mr. Njie and a friend, identified only as "Dameon," drove to a house at 1940 108th Street near Vernon Street. Mr. Njie met Mr. Johnson in the house. The person identified only as Dameon was left at his house. Mr. Njie and Mr. Johnson then drove to Mr. Bennett's house. Mr. Bennett was a fellow gang member. Mr. Bennett's girlfriend, Trinity Metzgen, was at his house. Also present were Mr. Moore and an individual identified as Mike. After playing a video game briefly, all those present left in two cars to go to the liquor store at 108th and Western Streets. Mr. Njie, Mr. Johnson and Mr. Moore rode in the burgundy Saturn. Ms. Metzgen, Mr. Bennett, and the person identified as Mike rode in her Mustang automobile. Mr. Bennett was driving Ms. Metzgen's Mustang. The person identified as Mike was in the back seat of the two-door car. Ms. Metzgen saw a small black gun in the car.
Mr. Njie, Mr. Johnson and Mr. Moore stopped at the 108th street address to pick up some marijuana. Thereafter, they drove to the liquor store. Ms. Metzgen's Mustang was already there. Mr. Njie, Mr. Johnson and Mr. Moore went into the liquor store, made a purchase, then returned to the Saturn. Mr. Njie drove. Mr. Johnson was in the right passenger seat and Mr. Moore was in the rear right passenger seat. As Mr. Njie pulled out of the parking lot, a green four-door Honda automobile almost collided with the Saturn. Mr. Njie began to follow the Honda. However, he could not catch up to the Honda. Mr. Njie saw the Mustang driven by Mr. Bennett pursue the Honda.
The Honda was driven by Jose Saucedo. Mr. Saucedo, Rene Escalante, Arianna Meneses, Miguel Gutierrez and others identified only as Santiago, Lluvia and Josephine were also in the Honda. The group was going to celebrate Mr. Saucedo's birthday. Mr. Escalante saw a Mustang automobile begin to follow them after they had stopped at a signal. The Mustang drove alongside the Honda, passed them and then stopped in front of them. Mr. Saucedo turned left, eluding the Mustang. When the Honda drove back to Western Avenue, a burgundy colored car began to follow them. Mr. Njie had resumed the chase in the burgundy Saturn when the Honda passed him on Western Street.
Mr. Njie drove up next to the Honda to ask the driver a question. Mr. Njie wanted to know why the two cars almost collided. Mr. Njie lowered his front electric right passenger window. Mr. Johnson pulled out a gun from under the seat and shot into driver's side of the green Honda.
The shot shattered the driver's window of the Honda. Mr. Saucedo was fatally shot in the left side of his face. Mr. Escalante saw the right front passenger of the burgundy car reach through the open window. Thereafter, Mr. Escalante heard a gun fire and felt glass shatter on his face. Mr. Gutierrez, who was seated behind Mr. Saucedo on the left side of the Honda, saw the right front passenger of the car pull a gun and fire once. Ms. Meneses, who was seated on Mr. Guiterrez's lap, saw the car pull up next to Mr. Saucedo's Honda. Ms. Meneses saw a gun come out of the right front passenger side of the Honda. Ms. Meneses saw a flash from the gun before she ducked down. After the shooting, Mr. Njie pulled around the corner and parked. Mr. Njie was very nervous. Mr. Johnson asked Mr. Njie to start the Saturn. At first, Mr. Njie refused to restart the car. Mr. Johnson ordered Mr. Njie to start the Saturn or they would fight. Mr. Njie started the Saturn.
The passengers in Mr. Saucedo's Honda were able to steer the car to a curb when he lost consciousness. A nearby neighbor called the police for them. Mr. Saucedo died as the result of the gunshot wound to his cheek and neck that injured his carotid artery and jugular vein thereby causing a fatal hemorrhage.
Mr. Bennett, who had lost sight of the Honda, asked Ms. Metzgen if she had heard gunshots. Soon thereafter, Mr. Njie saw Ms. Metzgen's Mustang on 108th Street. Mr. Njie drove to a Valero gas station at Western Avenue and Imperial Highway. Mr. Bennett also drove into the gas station. After leaving the gas station, the two groups drove to a nearby bowling alley, where they went inside briefly. Thereafter, they smoked cigarettes outside the bowling alley. Photographs taken by video camera at the bowling alley showed Mr. Njie, Mr. Johnson, Mr. Moore, Mr. Bennett, the person identified as Mike, and Ms. Metzgen. Later, all of those present drove back to Mr. Bennett's house in the Saturn and the Mustang. Mr. Njie, Mr. Johnson, Mr. Moore, Mr. Bennett, Ms. Metzgen and the person identified as Mike went inside Mr. Bennett's house for 20 to 30 minutes.
The group left Mr. Bennett's house. Mr. Bennett was driving the Mustang, Ms. Metzgen sat in the passenger seat and the person identified as Mike was in the rear seat. Mr. Johnson asked if he could drive the Saturn. Mr. Njie said, "Yes." Mr. Johnson indicated he was going to drive through an area known to be the rival gang territory. As Mr. Johnson drove on Crenshaw Boulevard and 104th Street, Mr. Njie saw a white Caprice automobile with two individuals inside. Mr. Njie believed the two men were members of the rival gang because of the color of their clothing. The men in the Caprice drove off. Mr. Johnson was unable to find them. However, as they drove through a residential area, they saw the white Caprice which was now parked.
Mr. Johnson drove in front of the Caprice and parked.
Mr. Johnson tried to hand Mr. Njie the gun. Mr. Njie told Mr. Johnson, "I don't want the gun." Mr. Johnson then handed the gun to Mr. Moore. Mr. Moore then leaned his body out the window behind the driver's seat and shot at the Caprice. The gun jammed the first time Mr. Moore tried to fire. However, he then successfully fired the gun. The Caprice drove away quickly. As Mr. Johnson in the Saturn began following the Caprice, Mr. Bennett drove up in the Mustang. Mr. Njie saw Mr. Bennett standing outside the Mustang's sunroof. Mr. Bennett was chasing the Caprice.
Mr. Bennett told Ms. Metzgen to "duck." After Ms. Metzgen put her head down, she heard more than two gunshots from above her. Mr. Bennett's body was lifted off the driver's seat. Mr. Johnson was driving the Saturn directly behind Mr. Bennett. Mr. Njie heard gunshots. The gunshots sounded as though they were coming from the area in front of him. When Ms. Metzgen finally raised her head up, she asked Mr. Bennett what had happened. Mr. Bennett said he knew the people in the car they had followed. The Caprice turned onto another street.
Chaundi Grant and Gerald Kelly, who were brothers, went out at approximately 10:15 p.m. on December 30, 2005, to get some food. Mr. Grant was driving a white Chevrolet. As Mr. Grant was about to parallel park, Mr. Kelly yelled out in a frightened tone, "D, they about to bust." Mr. Grant understood that to mean they would be shot. As Mr. Grant looked over his shoulder, he saw gunfire coming out of what he believed to be a gray Mustang automobile. Mr. Grant was hit in the back of the head by the first shot. Mr. Grant drove away. At the time of trial, Mr. Grant had a scar approximately two and one-half inches behind his right ear and an inch above the bottom of his hairline. The rear windshield of Mr. Grant's car had been shattered. As he drove away, Mr. Grant heard additional shots being fired. The shots stopped for a while. Mr. Grant believed that he might have lost the assailants.
Mr. Grant did not see the Mustang again until he had turned on Van Ness Boulevard, the next street. The Mustang followed Mr. Grant and shots were fired at him. Mr. Grant's car was hit several times resulting in: three flat tires; holes near the rearview mirror; holes in the handle of the driver's door; and holes in the rear passenger door. Eventually, the other car drove off. Mr. Grant stopped at Prairie Avenue and 97th Street, where he passed out. Mr. Kelly flagged down a passing ambulance, which took Mr. Grant to the hospital. Mr. Grant received stitches. Mr. Grant returned to the hospital two weeks later for follow up care. Mr. Grant described "pussing and bleeding" and the inability to lie on the back of his head as a result of the wound.
After the shooting, those in the Mustang and the Saturn then returned to Mr. Bennett's house. Mr. Bennett used a flashlight to try to find shells in Ms. Metzgen's car. A short time later, Mr. Njie drove up in the Saturn with Mr. Moore and Mr. Johnson. Mr. Bennett, Ms. Metzgen and the person identified as Mike got into the Mustang. After driving around for a while, they went to the 108th Street address to drop off Mr. Johnson. When they arrived at the 108th Street address, they were immediately arrested.
Los Angeles Police Officers Joshua Kniss and Jason Schwab arrived at the 97th Street shooting scene. During the course of their investigation, the officers spoke with the liquor store owner. Officer Schwab reviewed a security video tape. Officer Schwab reviewed the tape from a time period around 9:45 p.m. Officer Schwab saw three individuals on the tape that wore hats with the color of the local gang. While at the liquor store, Officer Kniss spoke with Curtis Potts. They discussed Mr. Pott's affiliation with the local gang. As a result of that investigation, Officers Kniss and Schwab went with other gang investigators to 1940 108th Street. Mr. Potts identified this as his residence. As they approached the 108th Street residence, Officer Schwab saw a burgundy Saturn and a silver Mustang. The engines were running and the lights were on in both cars. The occupants of both automobiles were ordered out of the cars. All those inside the house were also detained. All of those involved except Mr. Johnson were arrested. Officer Kniss later returned to the 108th Street address with another officer at 3 or 4 a.m. At that time, Mr. Johnson was arrested.
Finally, Detective Valento testified concerning defendants' street gang and its relationship to the shootings. Mr. Moore gave an extensive recorded statement to the authorities which was played to the jury. Mr. Moore admitted participating in the events leading up to the shootings. Mr. Moore, who admitted riding with the others in the Saturn, stated that Mr. Johnson had a gun. But Mr. Moore denied actually seeing who shot Mr. Saucedo. This was despite the fact that Mr. Moore was seated in the same car with Mr. Johnson when Mr. Saucedo was fatally shot. But Mr. Moore saw Mr. Johnson dispose of a cartridge in a gutter. Mr. Johnson then reloaded the gun. Mr. Moore admitted being present at the shooting of Mr. Grant. At one point in his contradictory statement, Mr. Moore stated he shot the handgun into the air. But at another point, Mr. Moore said to Mr. Johnson: "Yeah, I think I did it. I think I got him." Mr. Moore was tried by a different jury from the one that evaluated the charges against Mr. Bennett and Mr. Johnson.
(Respondent's Lodgment 10, pp. 3-8; see People v. Johnson, 2009 WL 3823890 at *1-4).
1. The trial court allegedly denied Petitioner a fair trial by admitting the testimony of a gang expert, Detective Michael Valento (Ground One); and
2. Petitioner's trial counsel allegedly rendered ineffective assistance by failing to object to the admission of Detective Valento's expert testimony (Ground Two).
STANDARD OF REVIEW
A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established Federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct. 823, 831 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), 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." Harrington v. Richter, 131 S. Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
In applying these standards, the Court looks to the last reasoned state court decision, here the decision of the California Court of Appeal. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
I. The Admission of the Gang Expert's Testimony Does Not Merit Habeas Relief.
In Ground One, Petitioner asserts that the admission of Detective Valento's gang expert testimony deprived Petitioner of due process and his right to trial by jury (Pet. Mem. at 19-20, 22). Petitioner contends that Detective Valento's testimony improperly invaded the province of the jury by: (1) lessening the prosecution's burden to prove that Petitioner acted with the requisite intent; and (2) essentially directing a verdict on the gang enhancement allegations and the issue of whether the attempted murders were premeditated and deliberate (Pet. Mem. at 16-22; Reply at 4-5). Petitioner claims that Valento's testimony imputed motive and intent to hypothetical actors who were "obviously the defendants" (Pet. Mem. at 17-18, 20). Petitioner also claims that the scope of Valento's testimony exceeded that permitted under California law (Pet. Mem. at 21 (citing People v. Killebrew, 103 Cal. App. 4th 644, 657-58, 126 Cal. Rptr. 2d 876 (2002)).
The Court of Appeal rejected these contentions (Respondent's Lodgment 10 at 18-20; People v. Johnson, 2009 WL 3823890, at *10-11). The Court of Appeal acknowledged that under California law a gang investigator is prohibited from offering an opinion of the knowledge or the intent of an accused. See Respondent's Lodgment 10 at 20 (citing, inter alia, People v. Gonzalez, 38 Cal. 4th 932, 946, 44 Cal. Rptr. 3d 237, 135 P.3d 649 (2006), cert. denied, 549 U.S. 1140 (2007), and People v. Gardeley, 14 Cal. 4th 605, 618, 59 Cal. Rptr. 2d 356, 927 P.2d 713 (1996), cert. denied, 522 U.S. 854 (1997)); People v. Johnson, 2009 WL 3823890, at *11. However, the Court of Appeal found that Valento's testimony constituted proper testimony in response to hypothetical questions and was "not tantamount to expressing an opinion as to [Petitioner's] guilt." See Respondent's Lodgment 10 at 18-20; People v. Johnson, 2009 WL 3823890, at *11. For the reasons discussed below, the Court of Appeal's decision was not objectively unreasonable.
A. Relevant Trial Testimony
As summarized above, Detective Valento testified concerning his experience from investigating various Crips gangs, including the 111 Neighborhood Crips (R.T. 2411-17).*fn2 Detective Valento testified that the primary activities of the 111 Neighborhood Crips are firearm-related assaults and felony vandalism (R.T. 2416-17). Detective Valento also testified concerning his familiarity with the prior convictions of other 111 Neighborhood Crips gang members (R.T. 2417-19). Based on his familiarity with these other convictions and "dealing with" 111 Neighborhood Crips gang members since 1996, Detective Valento opined that the 111 Neighborhood Crips are a criminal street gang (R.T. 2419-20 (stating "it confirms through the legal process that they are indeed a criminal street gang")).
There was evidence that Johnson and Petitioner were 111 Neighborhood Crips. Detective Valento testified that gang members typically have monikers, and that Johnson was known as "Little Dulo" (R.T. 2420-21). Earlier in the trial, Los Angeles Police Officer Jason Schwab testified that gang members can have gang-related tattoos incorporating their gangs, such as tattoos with a "111" or "N.H.C." for the 111 Neighborhood Crips (R.T. 1308-09). Detective Huff authenticated photographs of tattoos on Johnson's and Petitioner's bodies (R.T. 2144-47, 2153-55, 2170). Detective Valento viewed the photographs of Johnson's forearm tattoo depicting a skeleton-like face wearing a hat and holding a revolver with the numbers "111" on the barrel, and the letters "N.H.C." on the brim of the hat, explaining that those stand for the 111 Neighborhood Crips (R.T. 2421). The tattoo also contained Johnson's moniker "Little Dulo" and the left hand of the skeleton displayed the Neighborhood Crips gang sign (R.T. 2421-22). Detective Valento believed Johnson's tattoo was a gang tattoo for the Neighborhood Crips because it incorporated the gang's sign and several of the symbols that the gang members would tag and tattoo (R.T. 2422). Detective Valento also testified that Johnson's shoulder tattoos looked like gang tattoos, since one shoulder contained the letters "N.H." for Neighborhood Crips (R.T. 2423).
Detective Valento opined that Johnson was a 111 Neighborhood Crips member because Gabriel Njie had told police Johnson was a member,*fn3 because of Johnson's numerous gang tattoos, and because Johnson associated with other Neighborhood Crips (R.T. 2424).
Gabriel Njie testified that he knew Petitioner to be a member of the 111 Neighborhood Crips through Johnson (R.T. 1568-72, 1600). Detective Valento testified that he believed Petitioner was a gang member based on Petitioner having the moniker "Bear" and based on Petitioner's tattoo, which was concealed and had been explained by another gang member as a Neighborhood Crips tattoo -- the tattoo having a "C" for the Roman numeral 100 and two number "1"s above it for the 111 Neighborhood Crips (R.T. 2424-25).*fn4
Trinity Metzgen testified that on the night of the shootings Petitioner was wearing a short-sleeved black shirt on top of a long-sleeved red shirt or a short-sleeved red shirt on top of a long-sleeved black shirt (R.T. 1933). Officer Kniss testified that the primary color for Neighborhood Crips is blue, and that Crips members might wear red when going into rival Blood territory to blend into the neighborhood while looking for a victim (R.T. 1276-77). In response to a hypothetical question, Detective Valento testified that a person living where Petitioner lived, in Petitioner's age range, would not be permitted to walk around the streets wearing red unless he was a 111 Neighborhood Crips gang member (R.T. 2433).
Detective Valento said that it is not uncommon for Crips to wear red to "infiltrate Blood gangs" to get closer to Blood gang members for "missions," i.e., to target gang members for retaliation or to commit a shooting against a rival gang (R.T. 2414-15). Detective Valento explained, "[t]raditionally, [gang members] will go in and if they don't know the specific gang member that they're targeting, they will go into the rival neighborhood and commit an act of violence upon usually young African-American male blacks" (R.T. 2415).
The prosecution proposed a hypothetical to the expert outlining the events that occurred from the time Johnson allegedly called Njie about putting in work through the shooting of Salcedo, and asked if the expert would have an opinion concerning whether the shooting was committed for the benefit of, at the direction of, or in association with the 111 Neighborhood Crips (R.T. 2426-2427). With no objection, Detective Valento answered:
I believe it's at the benefit of and direction and the association with the gang, and that is due to the fact that it's at the direction of in that hypothetical that individual obtains a gun and says that they're going on a mission to avenge for a fellow gang member's shooting. Any acts of violence related to that is definitely going to be at his direction.
It's in association with the gang members and the individuals who went with him on that mission in that car, as well as the Mustang who obviously followed through the chase and then met up afterwards.
And it's for the benefit of the gang. It's the Neighborhood Crips going out to avenge individuals -- or avenge the shooting of their individual homeboy that had been killed a few days prior. By going out and avenging that killing, it's going out and showing that the Neighborhood Crips are a violent gang, they're not going to stand by while you go out and gun them down.
And by doing that, that instills fear and intimidation amongst not only other rival gangs, but the community and by upholding, keeping that reputation of being a violent street gang, it assists you in your criminal conduct. It helps you get away with criminal activity because witnesses don't want to come to court, witnesses don't want to testify, they don't want to inform law enforcement about the gang's activities. And that's how their activity benefits the gang.
(R.T. 2427-28). The prosecution asked how the shooting involving the Honda, which occurred in 111 Neighborhood Crips territory, would have anything to do with a mission (R.T. 2428-29). Without objection Detective Valento answered:
Well, in this scenario at the intersection, they are in route [sic] or planning to start the night off with their mission in this hypothetical, and during the course of that mission they were sideswiped by individuals in the other car. That could be viewed as complete disrespect.
Clearly in this hypothetical they were disrespected by the rival gang shooting them a few days prior. So any kind of disrespect towards them in their own neighborhood, the threshold for that is not going to be tolerated at all.
(R.T. 2429). The prosecution continued:
Q. In this hypothetical, I told you that the people in that victim vehicle were Hispanics. . . . Does -- you said that they normally go on a mission to attack rival gang members. In this case you said African-American males. ¶ So tell us how that fits in?
(R.T. 2429). Detective Valento answered:
The Neighborhood Crips -- I left nine months ago, but as far as I know they have no rivalries with Hispanic gangs right now. But the fact that simply because those Hispanics happened to disrespect them in their neighborhood, they were unfortunately going to reap the violent act of the gang because they were already fired up in the hypothetical and wanted to avenge a friend's death. So it was an unfortunate set of events for these Hispanics to come in. ¶ And as the gang in this hypothetical thought they were sideswiped, in my opinion, being disrespected in the neighborhood, and they weren't going to tolerate any more disrespect.
The prosecutor then posed a second hypothetical about the events happening after the Salcedo shooting that led to shots being fired at Grant and Kelly, and asked if the expert would have an opinion concerning whether those shootings were committed for the benefit of, at the direction of, or in association with the 111 Neighborhood Crips (R.T 2430-31). Without objection, Detective Valento answered:
Again, this was their original mission after -- in the hypothetical, after shooting and killing the male Hispanic, they went into the rival neighborhood and encountered two male blacks, African-Americans in that -- who were in the age range of what they perceive as a gang member, and in the hypothetical they end up targeting them and shooting at them, both cars, the Saturn and the Mustang, so clearly it's in association with two members of the gang and the people in those cars. It's for the benefit of because they are in that rival territory inflicting firearm-related violence, avenging the homeboy that had been shot a few days prior, and that benefits the gang in general.
And it was at the direction of an individual, a known 111 Street gang member, who at his direction said they were going on a mission to avenge the friend's shooting. And again, that shooting, as I stated earlier, benefits the gang by upholding their violent reputation amongst the community and other rival gangs.
(R.T. 2431-32). The prosecution asked whether the fact that one of the individuals might have been wearing red in Avenue Pirus territory affected the opinion, and Detective Valento replied: "The fact that they were wearing red, as I stated earlier, when they're on a mission, it's not uncommon to wear the enemy's colors so you can get closer to them. While you're circling the neighborhood, you won't be viewed as rivals." (R.T. 2432).
On cross-examination, Petitioner's counsel and Johnson's counsel asked Detective Valento questions about his opinion concerning whether the crimes were committed for the benefit of, in association with, or at the direction of a street gang, and whether certain facts from the incidents (and not just a hypothetical) would change Detective Valento's opinion (R.T. 2469-76, 2483-85, 2486-91). On redirect, the prosecution asked Detective Valento whether a non-gang member could commit a crime benefitting the 111 Neighborhood Crips, and Valento replied:
Well, in this case, we'll take Defendant Moore, for instance, being in a car. As far as I know, he has no gang self-admission, no gang tattoos, but he's in a car, going on a mission in rival hood. . . community, shooting against suspected Avenue Piru gang members. The gang in that rival hood is going to think that the Neighborhood Crips did that shooting regardless of whether Jonathan is actually shooting or not. That shooting is attributed to the gang, so what Jonathan did helps the reputation of the 111 Neighborhood Crips even though he's not in the gang.
Petitioner offered his own gang expert who reviewed the transcripts and testified that he believed Petitioner was not a gang member, based on there being no Field Identification card for Petitioner, and based on Petitioner having had no prior contacts with the police related to gang activity, no discernible gang tattoos, and no self-admission of being a gang member (R.T. 3109, 3112-13).
To the extent Petitioner claims that the admission of Detective Valento's testimony violated California law, Petitioner is not entitled to habeas relief. See Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (mere errors in the application of state law are not cognizable on federal habeas review). As noted above, the Court of Appeal found that the trial court could reasonably have allowed Detective Valento's testimony (Lodged Doc. 10 at 18-20; People v. Johnson, 2009 WL 3823890, at *10-11). It is not for this court to re-examine the Court of Appeal's determination on this state law issue. See Waddington v. Sarausad, 555 U.S. 179, 192 n. 5 (2009) ("we have repeatedly held that it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions") (citation and internal quotations omitted); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus"); see also Holgerson v. Knowles, 309 F.3d 1200, 1202 (9th Cir. 2002), cert. denied, 538 U.S. 1005 (2003) (habeas court "bound by California's interpretation of its state law") (citation omitted).
To the extent Petitioner contends that the admission of Detective Valento's testimony deprived him of due process and a fair trial, Petitioner's claim also lacks merit. Petitioner alleges that the introduction of Detective Valento's testimony improperly invaded the province of the jury, relieved the prosecution of its burden of proof on the gang enhancement allegations, and otherwise directed a verdict on those allegations because Detective Valento purportedly opined on the ultimate issues to be decided by the jury. Petitioner has failed to demonstrate a violation of any clearly established principle of due process.
"'The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'" Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir.), cert. denied, 516 U.S. 1017 (1995)); see also Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991) (proper analysis on federal habeas review is "whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair"). "The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process." Holley v. Yarborough, 568 F.3d at 1101. "Although the Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair [citation], it has not yet made a clear ruling that admission of irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Id. In the absence of such "clearly established Federal law," Petitioner is not entitled to habeas relief on his challenge to the admission of Detective Valento's testimony. See id.; see also Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419 (2009) ("it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court") (citations and internal quotations omitted); Wright v. Van Patten, 552 U.S. 120, 126 (2008) ("Because our cases give no clear answer to the question presented, . . . it cannot be said that the state court unreasonably applied clearly established Federal law") (citation, internal brackets and quotations omitted).
Petitioner's contention that Detective Valento usurped the jury's fact-finding role, assertedly by opining on the ultimate issues for the jury, does not suggest Petitioner's trial was fundamentally unfair. Under California law, expert testimony is admissible on a subject "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." See Briceno v. Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009) (citation and internal quotations omitted); Cal. Evid. Code § 801(a). "'Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.' The objection that the opinion of an expert coincides with the 'ultimate issue' in the case is untenable." People v. Roberts, 184 Cal. App. 4th 1149, 1193, 109 Cal. Rptr. 3d 736 (2010) (citations omitted); Cal. Evid. Code § 805. In Petitioner's case, Detective Valento did not opine regarding whether or why Petitioner may have shot at Grant and Kelly. Rather, Detective Valento testified in response to the prosecution's hypotheticals, and did not offer an opinion regarding Petitioner's specific intent in participating in the shootings. Compare Briceno v. Scribner, 555 F.3d at 1078-79 (finding expert testimony did not establish petitioner's specific intent in committing his crimes).*fn5 In any event, the United States Supreme Court has not held "that the Constitution is violated by the admission of expert testimony concerning an ultimate issue to be resolved by the trier of fact." Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009) ("That the Supreme Court has not announced such a holding is not surprising, since it is well established that expert testimony concerning an ultimate issue is not per se improper") (internal citations and quotations omitted)); see also Briceno v. Scribner, 555 F.3d at 1078 (noting that Moses forecloses challenge that gang expert testimony should have been excluded as pertaining to ultimate issue for the jury).*fn6
For the foregoing reasons, the Court of Appeal's rejection of Petitioner's claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Petitioner is not entitled to habeas relief on Ground One of the Petition.
II. Petitioner's Claim of Ineffective Assistance of Counsel Does Not Merit Habeas Relief.
In Ground Two, Petitioner alleges that he received ineffective assistance of counsel when his defense counsel failed to object to Detective Valento's assertedly improper testimony (Pet. Mem. at 23-25; Reply at 9-10).
A. Governing Legal Standards
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. "That requires a 'substantial,' not just 'conceivable,' likelihood of a different result." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (quoting Harrington v. Richter, 131 S. Ct. 770, 791 (2011)). The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 130 S. Ct. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 131 S. Ct. at 787 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id. at 791-92 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "'reasonably likely'" that the result would have been different. Id. at 792 (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id.
Where, as here, there has been a state court decision rejecting a Strickland claim, review is "doubly deferential." Harrington v. Richter, 131 S. Ct. at 788; 28 U.S.C. § 2254(d). A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 131 S. Ct. at 785. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 788. "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 131 S. Ct. at 786. "[T]he range of reasonable [Strickland] applications is substantial." Id. at 788; 28 U.S.C. § 2254(d)(1).
Applying the Strickland standard, the Court of Appeal rejected Petitioner's ineffective assistance of counsel claim. The Court of Appeal found that counsel was not deficient for failing to object to Detective Valento's testimony because such testimony was admissible under California law (Respondent's Lodgment 10 at 18-19 (noting that counsel was not ineffective in failing to make "futile or meritless objections or argument"); People v. Johnson, 2009 WL 3823890, at *10). The Court of Appeal's determination was not unreasonable.
First, counsel reasonably could have determined that objecting to the testimony would have been futile and might have drawn the jury to focus unduly on Detective Valento's opinion. Under California law, the culture and habits of street gangs are matters sufficiently beyond common experience as to render expert testimony on such matters admissible. See People v. Gardeley, 14 Cal. 4th 605, 617, 59 Cal. Rptr. 2d 356, 927 P.2d 713 (1996); Cal. Evid. Code § 801(a); see also Briceno v. Scribner, 555 F.3d at 1077. "Gang sociology and psychology are proper subjects of expert testimony. . . ." People v. Hill, 191 Cal. App. 4th 1104, 120 Cal. Rptr. 3d 251 (2011) (citations omitted). "Expert testimony is admissible to establish the existence, composition, culture, habits, and activities of street gangs; a defendant's membership in a gang; gang rivalries; the motivation for a particular crime, generally retaliation or intimidation; and whether and how a crime was committed to benefit or promote a gang." Id. (citation omitted). It is not error to admit expert testimony, using hypothetical questions "related to defendant's motivation for entering rival gang territory and his likely reaction to language or action he perceived as gang challenges." See People v. Ward, 36 Cal. 4th 186, 210, 30 Cal. Rptr. 3d 464, 114 P.3d 717 (2005), cert. denied, 547 U.S. 1043 (2006). Petitioner's counsel reasonably could have concluded that Detective Valento's testimony was proper under these standards. The failure to object in such circumstances is not deficient performance. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 419 U.S. 1142 (1997) (failure to take futile action can never be deficient performance); Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982) (failure to raise meritless legal argument does not constitute ineffective assistance of counsel); see also Hassan v. Morawcznski, 405 Fed. App'x 129, 132 (9th Cir. 2010), pet. for cert. filed, 80 USLW 3055 (Apr. 20, 2011) (counsel's failure to object to certain testimony was reasonable, where counsel "might have elected not to object for acceptable or strategic reasons");*fn7 Morris v. State of Calif., 966 F.2d 448, 456-57 (9th Cir. 1991), cert. denied, 506 U.S. 831 (1992) (counsel's failure to object to prosecutor's question whether defendant had ever used cocaine was a tactical decision and hence not ineffective); Charles v. Thaler, 629 F.3d 494, 502 (5th Cir. 2011) (counsel's decision not to draw undue attention to witness' statement by objecting was reasonable trial strategy); United States v. Allen, 390 F.3d 944, 951 (7th Cir. 2004) (counsel's failure to object to admission of photograph of defendant in custody not ineffective, as counsel reasonably could have chosen "to avoid drawing greater attention to the photograph"); Lara v. Allison, 2011 WL 835594, at *12 (C.D. Cal. Jan. 12, 2011), adopted, 2011 WL 845008 (C.D. Cal. Mar. 7, 2011) (counsel reasonably could have concluded that objecting to gang expert's brief reference to purchase of legal representation by gang members would have "drawn undue attention to the comment") (footnote omitted).
Second, Petitioner has not shown a reasonable and substantial probability of a different result had counsel objected to Detective Valento's testimony, even assuming that the trial court would have sustained any such objections. As summarized above, Gabriel Njie testified that Johnson had wanted to "put in work" or "shoot somebody" for Johnson's friend who had been killed (R.T. 1317-19, 1571-72). On the day of the incident, Johnson told Njie to come over to a house on 108th Street to "put in some work" (R.T. 1320-22, 1376, 1378-79).*fn8
Njie picked up Johnson at the house and then picked up Petitioner and Moore at Petitioner's house (R.T. 1321-34, 1378, 1383-84, 1568-72, 1600). When Johnson later shot Jose Saucedo, Njie reportedly was nervous, although he had expected that the men would shoot people that evening since they were going to "put in work" (R.T. 1344, 1374, 1378). The men regrouped at Petitioner's house after the shooting, and went out again to drive through the Blood gang neighborhood of the Avenue Pirus to shoot someone because it was believed that an Avenue Pirus member had shot Johnson's friend (R.T. 1346-52, 1354, 1404-07, 1409, 1412-13, 1527-28, 1575). Njie testified that the men targeted Grant and Kelly in the Caprice because Njie thought the men were Avenue Pirus members (R.T. 1357, 1414-15, 1576). After the men in the Saturn shot at the Caprice, Njie saw the Mustang approach and pass the Saturn, with Petitioner standing out the Mustang's sunroof (R.T. 1359, 1507, 1525, 1550-52, 1554). The Mustang then was following the Caprice (R.T. 1507, 1513, 1552). Njie heard gunshots that sounded like the shots were in front of him, in the location of the Mustang (R.T. 1360, 1514-15). Eventually, the Caprice turned onto another street, and the Saturn and Mustang returned to Petitioner's house (R.T. 1361-62, 1515).
Trinity Metzgen, the owner of the Mustang and Petitioner's girlfriend at the time of the shootings, testified similarly. Metzgen testified that she went to Petitioner's house on the night of the shootings and left a short time later to go to a liquor store with Petitioner and Little Mike in her car, and Johnson, Njie and Moore were in the Saturn (R.T. 1827-35). Petitioner was driving the Mustang with Trinity in the passenger seat and Little Mike in the back (R.T. 1834, 1837). On the way to the liquor store, Trinity observed a gun passed between Petitioner and Little Mike (R.T. 1835-36). As they were leaving the liquor store, Trinity noticed that a car pulled alongside the Mustang and revved its engine (R.T. 1837-38). The Mustang and the other car began racing (R.T. 1838). The other car eventually turned off, and the Mustang drove to a gas station (R.T. 1839-40). Moments later, Trinity saw Johnson walking up to the service station window where Petitioner was standing (R.T. 1840-41). Trinity and Petitioner returned to Petitioner's house with the people from the Saturn and later left in the two cars to drive around (R.T. 1841-43). After driving around awhile, Petitioner drove the Mustang to a side street where the Mustang began following another car at fast speeds (R.T. 1843-44). At one point, Petitioner told Trinity to put her head down, and then she heard gunshots coming from near her (R.T. 1844-45, 1847). Petitioner was in the seat next to Trinity, but was standing or with his legs extended (R.T. 1845-47, 1927). After the shootings, Petitioner told Trinity that he knew the people they had been following from a negative past experience (R.T. 1852). Petitioner drove the Mustang back to his house where he searched it for shell casings (R.T. 1853-54). Johnson changed his clothes before the police arrived (R.T. 1860).
Detective Valento testified based on his experience in dealing with the 111 Neighborhood Crips that members of the gang primarily engaged in firearm-related assaults and felony vandalism (R.T. 2416-17). Detective Valento also testified concerning the prior convictions of other 111 Neighborhood Crips gang members (R.T. 2417-19). Officer Schwab testified that the 111 Neighborhood Crips gang members can have gang-related tattoos incorporating their gangs, such as tattoos with a "111" or "N.H.C." for the 111 Neighborhood Crips (R.T. 1308-09).
From this evidence, the jury reasonably could have inferred that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the intent to promote, further, or assist in any criminal conduct by gang members. Considering this evidence, fairminded jurists could conclude that there was no reasonable probability of a different result at Petitioner's trial, even had counsel objected successfully to the expert's testimony. Harrington v. Richter, 131 S. Ct. at 792.*fn9
For the foregoing reasons, the Court of Appeal's rejection of Petitioner's ineffective assistance claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Petitioner is not entitled to habeas relief on Ground Two of the Petition.
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
MICHAEL BENNETT, Petitioner, v. MIKE McDONALD, Warden, Respondent.
NO. CV 11-4299-VAP(E)
ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on counsel for Petitioner and for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: ___________________________, 2011.
VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
MICHAEL BENNETT, Petitioner, v. MIKE McDONALD, Warden, Respondent.
NO. CV 11-4299-VAP(E)
Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge, IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.
DATED: ___________________________, 2011.
VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE