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Tony Goodrum v. Timothy E. Busby

June 13, 2012

TONY GOODRUM,
PETITIONER,
v.
TIMOTHY E. BUSBY, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) DENYING REQUEST FOR EVIDENTIARY HEARING; (3) DENYING REQUEST FOR DISCOVERY CONCERNING LAW ENFORCEMENT OFFICERS [ECF No. 5.]; and (3) DISMISSING CASE WITH TO AMEND. PREJUDICE AND WITHOUT LEAVE

On September 23, 2011, Petitioner, Tony Goodrum (hereinafter "Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court challenging his San Diego Superior Court conviction in case number SCD170068 for voluntary manslaughter and personal use of a firearm.*fn1 (Pet. 1.)

On November 9, 2011, Petitioner filed an amended Petition which is the operative pleading in this case.*fn2 [ECF No. 10.] Petitioner previously filed a Petition for Writ of Habeas Corpus in this Court in case number 07cv0752*fn3 challenging the same San Diego Superior Court conviction, and has been granted leave to file a second or successive petition by the Ninth Circuit Court of Appeals. The Court now considers whether Petitioner's current application meets the standard pursuant to 28 U.S.C. § 2244 to permit Petitioner to proceed with a successive petition in this Court. After careful review of Petitioner's Petition and exhibits*fn4 , the Response by Respondent, Petitioner's Reply and its attachments, the Court finds that Petitioner has not met the requirements of 28 U.S.C. § 2244(b)(2)(B) for filing a second or successive habeas petition pursuant to 28 U.S.C. § 2254.

I. PROCEDURAL BACKGROUND

Petitioner previously filed a Petition for Writ of Habeas Corpus in this Court in case number 07cv0752 challenging the same San Diego Superior Court conviction for voluntary manslaughter and personal use of a firearm, which was denied on the merits on September 6, 2008. (See Order in case no. 07cv0752 IEG (JMA) Goodrum v. Cate, ECF No. 31.) On June 22, 2007, during the pendency of that case, Petitioner filed an Application for Leave to File a Second or Successive Petition with the Ninth Circuit Court of Appeals. (See Application for Leave to File Second or Successive Petition in Goodrum v. Kramer, No. 07-72512, Jun. 22, 2007.) On September 13, 2007, the appellate court denied the application "without prejudice to refiling should petitioner receive an unfavorable disposition of the first petition that is currently pending in the district court." (See Order in Goodrum v. Kramer, No. 07-72512, Sep. 13, 2007.) After the denial of his first federal petition and its affirmance on appeal, Petitioner filed a second Application for Leave to File a Second or Successive Petition. (See App. for Leave to File Second or Successive Pet. 4-5, Goodrum v. Busby, 10-73336, Oct. 29, 2010.) Petitioner's application was granted by the Ninth Circuit Court of Appeals on August 31, 2011. (See Goodrum v. Busby, 10-73336, Aug. 31, 2011.) Following the Ninth Circuit's order, Petitioner filed the instant Petition on September 23, 2011.

On October 7, 2011, the Court issued an Order to Show Cause for the parties to brief the narrow issue as to whether the Petition met the requirements of 28 U.S.C. § 2244(b)(2)(B) for bringing a second or successive petition. [ECF No. 3.] On January 20, 2012, Respondent filed a Response to Order to Show Cause. [ECF No. 16.] Petitioner filed his Reply on April 10, 2012. [ECF No. 24.]

II. FACTUAL BACKGROUND

The 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. See 28 U.S.C. § 2254(e)(1)(West 2006); seealsoParke v. Raley, 506 U.S. 20, 35-36 (1992) (holding that 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:

Goodrum lived with his girlfriend Ieisa Wilson, her two children, and another couple in a house on Brookhaven Road. Goodrum and the victim, Dwayne Stamps, were friends. About a year earlier Stamps had rented a room in the Brookhaven house for a few months. In the past, Goodrum and Stamps had argued, even to the point of pushing or shoving each other, but they had never had a fist fight and Stamps had never made any threats to kill Goodrum or anyone else. Goodrum and Stamps had not seen each other for several months. Some animosity had developed between them because Stamps had borrowed and not returned Wilson's car (Wilson and Goodrum viewed it as a theft of Wilson's car).

On September 24, 2002, Stamps had been terminated from a drug rehabilitation program, his girlfriend Lorraine Murray had complained about not being happy with the relationship, and he had backed her vehicle into a pole or tree, damaging it. After stopping at a bar, Stamps and Murray drove to the Brookhaven residence, arriving about 9:00 p.m. At the time of his death, about 30 minutes later, Stamps had a blood alcohol level of .17 percent.

When Stamps and Murray arrived, the garage door to the Brookhaven residence was propped open six to seven inches with a pipe. The lights were on in the garage, which was often used by the residents of the house as an additional living space. Goodrum was inside the garage with a woman playing dominoes. Goodrum, the woman, and her friend had used methamphetamine that day "for a few hours at least." When Stamps knocked loudly on the garage door, Goodrum responded by opening the door. Stamps walked in and said he was looking for Jason Cruz who had his earring and other belongings. He was rude to the woman, suggesting in a lewd manner that he knew her and told her that if she saw Cruz to tell him that he was going to kill him.

Stamps entered the house, took Wilson into the bedroom and accused her of saying "mean things" about him. According to Wilson, Stamps threatened to kill her. When Goodrum entered the bedroom, Stamps accused Goodrum of having his diamond earring. Goodrum said the earring was in a duffel bag, which he took out of a closet, carried out to the garage, and set down in front of Murray's vehicle. Stamps and Goodrum argued in the garage and exchanged blows both in the garage and in front of Murray's vehicle. According to Goodrum, Stamps said he was going to get a gun and shoot everyone in the house.

Stamps went to Murray's vehicle and pulled out a roofing hammer, which was described as looking like a tomahawk, hatchet, or axe. According to Goodrum, Stamps threatened, "I'm gonna fuck you up. I'm gonna fuck you up." Goodrum pulled out a knife and picked up a trash can with his other hand. The men continued arguing but did not raise their weapons. Goodrum told Stamps to leave.

There were other people in the garage area, including the woman with whom Goodrum had been playing dominoes, Murray, and Goodrum's friend Howard Herring. According to some of the witnesses, things calmed down; both men put down their weapons, they hugged, Stamps apologized, and said he loved Goodrum as a brother. According to Goodrum, things did not calm down. Stamps made a comment that he was "gonna get [his] strap and shoot everybody in the house." Goodrum responded he was going into the house and when he came back he was "gonna be shootin' sparks." Goodrum retrieved a rifle from between the mattress and box springs of the bed in the master bedroom. He cocked the rifle in the bedroom.

When Goodrum entered the garage with the rifle, Stamps stood near the rear of the driver's side of a car parked in the garage. When Stamps became aware of the gun, he said something like, "Go ahead and shoot me." According to several witnesses, including neighbors, Stamps was not holding anything in his hands. A neighbor across the street saw Goodrum advance toward Stamps. Herring and Goodrum, as well as another neighbor, testified Stamps started walking toward Goodrum. Goodrum fired twice at Stamps, hitting him once in the head and once in the chest.

Herring testified that after the first shot, Stamps turned, grabbed his stomach and said something like, "I can't believe you shot me." Herring saw blood in the area of Stamps's heart. As Stamps turned, Goodrum fired a second shot and Stamps collapsed to the ground. According to Murray, the first shot hit Stamps in the face and he staggered. The second one hit him in the heart, he fell to the ground, and Goodrum was preparing to fire again when Murray shouted at him to stop.

According to Goodrum, when he entered the garage, Stamps commented in a sarcastic or mocking tone of voice, "Oh, he's got a gun. What are you gonna do with a gun?" Goodrum thought Stamps was hiding something behind his back, possibly a gun. Stamps kept advancing despite Goodrum's warning him that he was going to shoot if Stamps came any closer and that he was "a damn good aim." Goodrum fired when Stamps started moving a pipe from behind his legs. After the first shot, Stamps continued to swing the pipe up, so Goodrum fired again. A pipe was later found near Stamps's body.

Stamps died as a result of the gunshot wounds, either of which was potentially fatal. The head wound likely would have caused immediate unconsciousness and it would have been unlikely Stamps would have been able to speak or move after the wound was inflicted. The barrel of the rifle was two feet or further from the head wound when it was inflicted. In contrast, the barrel of the rifle was touching or nearly touching Stamps when the chest wound was inflicted. It is possible that if the chest wound were inflicted first that Stamps might have remained standing and able to speak.

Goodrum presented evidence that after the shooting Murray had told some people that earlier in the evening Stamps stated he thought he was going to die that night and purposely drove into ongoing traffic and hit a light pole, in an effort to kill them both. She said Stamps was upset about being terminated from the drug rehabilitation program and was afraid if he "got a dirty test" he would be sent back to jail. He told her he was not going back to jail; they would have to kill him first. She also said Stamps had grabbed a pipe and had advanced toward Goodrum. Murray denied making any of these statements.

(Response 2-3, citing People v. Goodrum, 2004 WL 1854188, *1 -2 (Cal. App. 4 Dist., 2004).)

III. DISCUSSION

A petitioner proceeding with a second or successive petition where the Ninth Circuit has granted leave to file a successive petition, must satisfy the requirements of 28 U.S.C. section 2244 or the district court shall dismiss any claim ...


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