The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING
On December 30, 2011, Robert Myers ("Petitioner"), a California state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. No. 1.) On April 27, 2012, Anthony Hedgpeth ("Respondent") filed a response in opposition. (Doc. No. 12.) On September 28, 2012, the magistrate judge issued a report and recommendation that the Court deny the petition and dismiss the case with prejudice. (Doc. No. 20.) Neither party has filed objections to the magistrate's report.
Three drive-by shootings took place over the course of two days in August 2004, in which five people were shot and two were killed. (Doc. No. 13-3 at pp. 4-8.) The following facts are taken verbatim from the California Court of Appeal's opinion:
This case involves rival street gangs and three related shooting incidents that took place over a 22-hour period. One of the gangs, the Skyline Piru street gang, was active in the Skyline area of southeast San Diego and frequented the 1300 block of Gribble Street, Skyline Drive and Meadowbrook Drive. The gang was allied with the O'Farrell Park gang. The main rivals of the two gangs were the Lincoln Park and the Five Nine Brim gangs, which were allied with each other. Myers, whose moniker was "Baby Lunatic," was a member of the Five Nine Brim gang.
August 13, 2004: The Gribble Street Shooting
On August 13, 2004, Charles Foster, a member of the Skyline Piru gang, and another Skyline Piru gang member were walking along the intersection of Lausanne Drive and Skyline Drive when they were approached by three black males in a white Ford Expedition. The male in the front passenger seat asked, "What's brackin?" which means "What's up?" Foster replied, "You know what's brackin," and flashed his hand signal for the Skyline Piru gang. The front passenger responded by flashing the hand signal for the Lincoln Park gang. Foster challenged them to get out of the vehicle and fight. The front passenger said, "No. It ain't time yet."
After the Expedition drove away, Foster warned everyone he saw who was a Skyline Piru gang member to watch out for a white truck.
At approximately 8:00 that night, Myeshia Ziegler received a phone call from her boyfriend. He told her to watch out for a white Expedition with occupants that might be driving around shooting people in Skyline. At approximately, 11:30 p.m., Ziegler, Stephanie Robinson and others were in front of a neighbor's house on Gribble Street. When Ziegler and Robinson saw the white Expedition, they hid behind a vehicle in the driveway and yelled to others: "Get down, white Expedition." Charles Foster was down the street with other individuals in front of Darrell Flynt's house. Ziegler's brother Arthur, who was standing on the corner, saw the white SUV traveling west on Gribble Street. Its headlights were turned off. The vehicle was traveling slowly, but sped up as the windows were rolled down. Someone in the rear passenger seat flashed a Lincoln Park gang signal.
According to Robinson, there were three black males in the Expedition. The driver shot over the roof of the vehicle with his left hand over the driver's door. The rear passenger, who was behind the driver, sat on the rolled-down window and leaned over the top of the vehicle as he fired a gun. The front passenger also fired shots. Ziegler told police she saw two shooters.
Shots from the Expedition were fired at Flynt's house. Foster was shot in his left ankle as he ran toward an opened garage door. Flynt told police that the left rear passenger leaned out and fired over the top of the Expedition. Flynt described the shooter as a black male wearing a white baseball cap, white do-rag and white T-shirt. Flynt said he saw five males in the Expedition. Foster saw two males on the passenger side of the Expedition--one was bald and the other was wearing a baseball cap with orange on it, which looked like an old Houston Astros hat. He recognized the bald passenger as the person who, earlier that day, spoke to him from the Expedition.
In the middle of the street near a speed bump, police found a tan-colored baseball cap with an "SD" logo. Police also found four shell casings from a .380 caliber gun and six casings from a .22 caliber gun. Additionally, a missile from a fired round was found, but it was too distorted to determine the caliber.
August 13, 2004: The Fashion Valley Shooting
On the night of August 13, five friends--Richard Wilson, Christopher Scott, Kenneth McKnight, Marcus Whitfield and Michael Canty--went to the Padre Gold to attend a "Freaky Friday" club-type event. Scott and Wilson arrived in Wilson's BMW 745. McKnight and Whitfield arrived in Whitfield's Lexus. Canty arrived by himself in a borrowed Mustang. Scott and Wilson went inside while the others stayed outside in the parking lot. McKnight spoke with two females he met outside. Later, the two females went over to a white Expedition parked on the other side of the lot.
When Scott and Wilson came back outside, they said the crowd inside the Padre Gold was too young. The five friends decided to go to the Gaslamp District. They agreed to give a ride to a girl who asked if they could drive her home. The three vehicles left in tandem, with the girl in Wilson's BMW.
After they dropped the girl off inside a Naval housing complex across the street from the Padre Gold, McKnight noticed a white Expedition behind them, but did not think much about it. McKnight was riding with Whitfield in the Lexus, which was the lead car as the three cars headed south on Freeway 163. The next car was Wilson's BMW with Scott. Canty followed them in the Mustang.
As they drove through the Fashion Valley area, McKnight and Whitfield heard a sound "like . . . a tire popping." McKnight looked back, but did not see the other two cars driven by his friends. There was no answer when McKnight called Wilson on his cell phone. Whitfield later called Canty and found that Canty was at UCSD Medical Center. Whitfield drove to the hospital and learned Canty was shot in the arm. Whitfield and McKnight then went back onto Freeway 163 to look for Scott and Wilson.
Scott, who was in the BMW, had heard two or three gunshots, and he asked Wilson if he heard anything. Wilson turned down the radio. Five or six shots were then fired at the BMW. Scott ducked under the glove box and saw that Wilson was lying over the center console. The car was still moving, and, after Scott unsuccessfully attempted to revive Wilson, he tried to stop the vehicle by ramming it toward the center divider. The car slid 597 feet along the barrier before coming to a stop. At that point Scott realized he had been shot in the back. The California Highway Patrol was dispatched to the Fashion Valley scene at 12:40 a.m. on August 14, 2004. Three shell casings (9 millimeter) were found on the freeway. One casing was 261 feet from the resting point of the BMW, another one was 1,944 feet from the resting spot and the other was 2,087 feet from the resting point.
Paramedics arrived and transported Wilson and Scott to the hospital. Wilson died from a gun shot to the back of his head. Scott, who had been shot in the back and in his shoulder, underwent surgery and stayed in the hospital for a week. He used a breathing machine for three months. At the time of trial--four years later--one bullet remained in Scott's chest. He ...