The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner and is proceeding with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1
Petitioner was convicted by a jury of first degree murder and
attempted robbery. The jury also found true a special circumstance
felony murder and that Petitioner personally used a weapon. Petitioner
was sentenced to life in prison without the possibility of parole with
a consecutive term of twenty-five years to life imprisonment for the
gun enhancement. Petitioner raises three claims in this federal habeas
petition; specifically: (1) his constitutional rights were violated
when the court instructed the jury on implied malice when
Petitioner was only charged with first degree murder ("Claim I"); (2)
his constitutional rights were violated when he was not given the
opportunity to cross-examine a witness (Timothy Clay) at trial as his
preliminary hearing testimony was used instead ("Claim II"); and (3)
his constitutional rights were violated when the prosecutor impugned
the integrity of defense counsel at trial ("Claim III"). Petitioner
has filed a motion to stay his federal habeas petition. Respondent
opposes the motion to stay. For the following reasons, Petitioner's
stay motion should be granted.
II. FACTUAL BACKGROUND*fn2
Defendant and his friend Jamar Woodson agreed to help Woodson's cousin Alexander Glaude, find someone to sell him marijuana. Glaude followed defendant and Woodson as they drove from Fairfield to the apartment of O'Brian Buchanan at 1718 Santa Clara Street in Vallejo.
Buchanan lived on the ground floor of a two-story apartment building and a stairway to the second floor units was just outside his apartment door. A walkway along the north side of the building leads to a rear parking lot.
Glaude arrived there carrying $1,753 in cash between 11 p.m. and midnight with his girlfriend, Lynesse Hamilton. He parked in the rear parking lot, told Hamilton he would return soon, and went inside. He returned about 15 minutes later and moved the car to a spot on Santa Clara Street, across from the apartment building. He left Hamilton waiting in the car with the engine running and returned to Buchanan's apartment.
Sometime later Hamilton noticed a man standing near the corner of Buchanan's apartment with a white shirt or towel covering his face. She thought he had a gun because of the way he was holding his hands, but she did not see any weapon. The man was a medium build and dark complected or wearing a dark shirt. Glaude emerged from the apartment about 15 feet from where the man was standing and tussled with someone near the front of the building. Hamilton heard gunshots and was frightened. She ducked and then moved the car onto the street. As she did so she heard more gunshots. When Glaude did not appear after a couple of minutes, she drove to the next block and asked a woman to call 911.
Eileen Vargas lived on the second floor in Buchannan's [sic] apartment building. Shortly after midnight she heard men arguing in the stairwell area about "weed," followed quickly by gunshots. She heard a muffled voice say "Don't look at my face" and "Do you want me to uncover my face?" Then the voice said "Get down on the ground" and demanded "Where's the money?["] and "Where's the shit?" After that she heard two series of gunshots that totaled about six shots. The first series of shots came from the front corner area of the building at the bottom of the stairs. The second series sounded like it came from the back of the building. Then she heard someone say "I've been shot in the hand."
Jerry Rozewski lived across the street from Buchanan's apartment complex. Shortly after midnight he also heard gunshots coming from the apartment. From his window he saw a man holding his left arm leave the apartment complex and get in the back seat of a car facing the wrong way on Santa Clara Street. Rozewski was unable to get a good view, but he could see that the man was an adult African-American with probably a shaved head.
Timothy Clay was 19 years old at the preliminary hearing. He was playing video games with four or five friends in Buchanan's apartment the night of the shooting, when Woodson (known as "Mar") and defendant (known as "Turtle," "Wax," or "Turtle Wax") arrived. Woodson and defendant kept entering and leaving the apartment. Their behavior made Clay nervous, so he left. He walked out to the front of the apartment complex and tried to call his friend Alton, who was still inside.
Detective Robert Reynolds interviewed Clay two days after the shooting. Reynolds testified that Clay initially denied that he witnessed the shooting and claimed he was inside the apartment at the time, but after further questioning Clay acknowledged that he was outside at the time, and he identified the defendant as the shooter. He was in front of the apartment when he saw a man with a white shirt or cloth covering his face. He described the man as about six feet tall and weighing 220 to 230 pounds. The assailant was holding a gun in each hand and ordered Glaude and Woodson to lie on the ground. They complied at first, but then Glaude got up and fled. Defendant fired three shots. He hit Glaude at least once and shot himself in the hand. Glaude went down, but when defendant dropped one of his guns Glaude got up and fled down the walkway toward the back parking lot. Defendant picked up his gun and fired two or three more shots at Glaude. Then, defendant and Woodson ran across Santa Clara Street and got in a car.
Over defense objections, Clay was declared an unavailable witness and his preliminary hearing testimony was read to the jury. In the preliminary hearing Clay denied that he saw the shooting and was questioned about the statements he made to Detective Reynolds two days after the shooting. He disavowed his earlier statement to Detective Reynolds, and claimed he was merely repeating what Buchanan had told him might have happened. The prosecution impeached Clay's recantation with his prior statement to the detective.
After the shooting defendant and Woodson drove from Vallejo to San Francisco General Hospital to get defendant's hand treated. An emergency room surveillance tape showed that defendant arrived not wearing a shirt. When he was questioned by police in the emergency room, defendant said he had been robbed and shot in West Point. When officers went to West Point, they found no evidence of a crime.
The Investigation Vallejo Police Corporal Steve Darden arrived at the scene at 12:16 a.m. shortly after the shooting. Glaude was lying in the shrubbery in the back of the complex. He had been shot and was in bad condition. Darden saw two distinct trails of blood leading from the area of the shooting, one led down the stairwell along the northeast side of the complex to where Glaude was laying in the bushes. The other went the opposite direction, to the spot on Santa Clara Street, where the injured shooter got in a car.
Several bullet fragments and two spent casings were found in the stairway area next to the entrance to Buchanan's apartment. Three more casings and additional bullet fragments were found near the driveway. Defendant's white shirt was in the stairwell with a bullet fragment on top of it.
DNA testing confirmed that blood on the T-shirt was defendant's. [FN 1] His blood was also found in samples from both blood trails, indicating that defendant pursued Glaude down the north walkway to the parking lot before he fled south along the street to his car.
[FN 1] The genetic profile in the bloodstain would be expected to occur in only one in 433 quadrillion African-Americans.
A forensic pathologist testified that Glaude was shot four times: once through his right hand, twice in the front of his left thigh, and once in the center of his back. His hand was shot from a distance of a few inches, and the lethal wound to his back was fired from approximately one or two feet away.
Cell phone records showed defendant called Woodson around five minutes before the murder. In the four hours before the murder, Woodson called Glaude's cell phone 15 times. The final call was 10 minutes before the murder.
After he was arrested, defendant told his girlfriend in a telephone call from jail: "Hey, you know, where I fucked up at? [¶] Going to the hospital."
Defense Defendant testified that sometime on the day of the shooting, Glaude called Woodson to ask about buying marijuana. Woodson and defendant met Glaude in a parking lot in Fairfield and Glaude followed them in his car to Buchanan's apartment. Defendant went into the apartment with Woodson and Glaude and waited as they talked, but he grew impatient and left after 10 or 15 minutes. Defendant said he tried to drive to the freeway, but got lost and found himself back on Santa Clara Street driving in the wrong direction. He parked and walked back towards Buchanan's apartment via the rear driveway. As he turned the corner, he said he stumbled into the middle of a robbery. Glaude was lying prone on the ground and a man wearing some kind of white mask was standing over him and started to approach. Defendant grabbed the gun and they wrestled. Glaude got up and came to defendant's assistance. The robber started shooting. Defendant managed to free himself from the robber's grasp, but more shots were filed as he ran up the stairs and he was hit in the hand.
Defendant fled along the north walkway and around the front of the building, and lost his T-shirt as he ran. He ran to his car and drove away. As he turned the corner he saw Woodson running and picked him up. Defendant testified that they drove to San Francisco rather than to the hospital in Vallejo because he was afraid the gunman might come after him to "finish [him] off, so I was trying to get as far as possible." He said he lied to the officers who questioned him in the emergency room because he was afraid of retribution from the assailants if he told the police about their operation. (Slip Op. at p. 1-5.)
Petitioner appealed to the California Court of Appeal after his conviction and sentence. The California Court of Appeal affirmed the judgment on August 22, 2008. Petitioner then filed a petition for review to the California Supreme Court. The California Supreme ...