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Vernell Devon Bush v. J. Walker

March 18, 2013

VERNELL DEVON BUSH,
PETITIONER,
v.
J. WALKER, WARDEN; TIM V. VIRGA, WARDEN; AND DANIEL E. LUNGREN RESPONDENTS



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER:

(1) DENYING PETITION FOR WRIT OF HABEAS CORPUS; [Doc. No. 15] (2) GRANTING RESPONDENTS' MOTION TO DISMISS; [Doc. No. 17] (3) ADOPTING REPORT AND RECOMMENDATION; AND [Doc. No. 24] . (4) DENYING CERTIFICATE OF APPEALABILITY

On June 13, 2012, Petitioner Vernell Devon Bush ("Petitioner"), a state prisoner proceeding pro se, filed a Third Amended Petitioner for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("the Petition"). (Doc. No. 15.) On July 26, 2012, Respondents filed a motion to dismiss the Petition, and on September 18, 2012, Respondent filed an answer to the Petitioner. (Doc. Nos. 17, 21.) On November 19, 2012, Petitioner filed a traverse. (Doc. No. 22.) On November 29, 2012, Magistrate Judge Gallo issued a report and recommendation ("R & R") recommending that the Court grant Respondents' motion to dismiss and deny the Petition. (Doc. No. 24.) For the following reasons, the Court grants Respondent's motion to dismiss and denies the Petition.

BACKGROUND

Petitioner seeks relief from his conviction for second degree robbery with a criminal street gang enhancement. (Doc. Nos. 1, 15.) The following facts are taken from the California Court of Appeal's decision affirming Petitioner's conviction and sentence. (Lodgement No. 7.) The facts are presumed to be correct pursuant to 28 U.S.C. § 2254(e)(1).

On December 8, 2006, shortly before 8:00 a.m., [Petitioner] Bush approached Karla Madrigal, who was sitting in her car parked on Solola Avenue in the Lincoln Park area of San Diego. Madrigal was not from the neighborhood, but was talking on her cell phone while waiting to visit an aunt who lived there. Bush approached the car, dressed in red shorts and black shirt, and asked Madrigal if she was waiting for someone. Madrigal responded by rolling up the window of her car. Bush left, then came back and asked if she knew the time. Madrigal pointed to her car clock and continued to talk on her cell phone in Spanish, which Bush could not understand. Bush then lingered on the street nearby. Shortly thereafter, Madrigal got out of her car and crossed the street to enter the parking lot of her aunt's apartment complex, when she heard footsteps and looked back to see Bush running toward her and pointing a gun at her. He asked Madrigal, "What the hell are you doing here, [b****]?" and said "This is not your territory" or "you're in the wrong territory." Bush took Madrigal's cell phone away from her and said, "Give me your purse." When she resisted, he pointed the gun to her had and said, "Give me your purse or I will blow the hell out of you." Madrigal pulled her wallet and $1,200 in rent money out of her purse, and Bush took them. She then walked away while Bush continued to point the gun at her. Bush kept Madrigal's wallet, cell phone and $1,200.

Bush was tried on charges of robbery and receiving stolen property arising out of the Madrigal incident, along with felony charges arising from three other incidents in which he was involved. The amended information charged Bush with criminal street gang enhancements pursuant to section 186.22, subdivision (b)(1) in connection with four felony counts (three robberies and one carjacking).

During trial, the prosecution presented expert testimony from Detective William Cahill of the San Diego District Attorney's Office Gang Prosecution Unit regarding two gangs, the 5/9 Brim and Lincoln Park gangs. Cahill testified that the two gangs were allies, and both were known to frequent the area in which Madrigal was robbed. Members of the gangs would "put in work"--or commit crimes--in that area to generate respect for themselves within the gang. Greater respect was obtained by committing bold, brazen or violent acts, such as robbery and carjacking. Commission of such crimes served to enhance the gang's fearsomeness in the community. After testifying generally about his knowledge and experience with the 5/9 Brim and Lincoln Park gangs, Cahill offered three opinions.

First: Cahill opined that Bush was a documented 5/9 Brim gang member. He based this opinion on Bush's criminal record, contacts with other gang members, the "Brim" tattoo on Bush's arm, the nature of the crimes with which Bush was charged, and a 2004 field interview by a police officer in which Bush claimed gang membership and wore a "B" belt buckle associated with the Brim gang. Cahill noted Bush had been observed by police associating with members of both gangs in the area where the Madrigal robbery and other crimes on which Bush was being tried occurred.

Cahill next opined that the robbery of Madrigal, and the other crimes with which Bush was charged, were crimes a 5/9 Brim gang member typically would commit to gain respect within the gang, instill fear within the community and benefit the gang. He explained that the Madrigal robbery, for example, took place in an area where the 5/9 Brim gang commonly "put in work," involved a brazen act of intimidation and the putting of a gun to the victim's head, and the wearing of gang colored red shorts (a color associated with the Brim gang, a "Blood" set). According to Cahill, the gang would benefit from the robbery proceeds, which would be used by gang members for partying; buying drugs, buying guns, car rims, stereos or jewelry, and possibly giving money to others less fortunate in the gang.

Cahill finally opined, over objection, that Bush committed the charged offenses "with the intent of promoting the gang and also promoting his reputation within that gang."

Bush testified in his own defense at trial. He acknowledged that he had joined the 5/9 Brim gang when he was 12 years old and still bears a "Brim" tattoo on his right arm, but claimed he left the gang four years earlier. Testifying about his robbery of Madrigal, Bush admitted he was suspicious of Madrigal's presence in the area; that he approached her "out of nowhere, blam"; and that he asked her what she was doing around there, while holding a gun in his hand so that she would see it. Bush also admitted that he took Madrigal's cell phone and told her to "get out of here." (Id. at 2-5.)

On May 27, 2008, a jury found Petitioner guilty of three counts of second degree robbery, two counts of grand theft, one count of carjacking, and one count of receiving stolen property. (Lodgment No. 1 at 145-59.) As to four of the convictions, the jury found true the allegations that Petitioner used a firearm. (Id.) As to one of the robbery counts, the jury found true the allegation that Petitioner committed the act for the benefit of a criminal street gang. (Id.) On August 4, 2008, the Court sentenced Petitioner to 40 years imprisonment. (Id. at 209-10.)

On August 12, 2008, Petitioner appealed his convictions. (Lodgement No. 1 at 212-14.) On November 10, 2009, the California Court of Appeal affirmed in part and reversed in part Petitioner's convictions. (Lodgement No. 7.) The Court of Appeal reversed Petitioner's conviction for receiving stolen property and ordered the trial court to amend the abstract of judgment to delete that conviction. (Id.) On November 18, 2009, Petitioner filed a petition for review in the California Supreme Court. (Lodgement No. 8.) On January 13, 2010, the California Supreme Court denied the petition. (Lodgment No. 9.) On January 19, 2010, the California Court of Appeal issued a remittitur which stated that the decision of the Court of Appeal became final on that date. (Lodgment No. 10.)

On June 2, 2011, Petitioner filed a Petition for Writ of Habeas corpus in federal court. (Doc. No. 1.) The Court dismissed the petition without prejudice for failure to name a proper respondent. (Doc. No. 4.) On August 22, 2011, Petitioner filed a First Amended Petition, and on October 17, 2011, Petitioner filed a Second Amended Petition. (Doc. Nos. 7, 9.) These two amended petitions were dismissed without prejudice on exhaustion grounds. (Doc. Nos. 8, 11.) On June 13, 2012, Petitioner filed a Third Amended Petition ("the Petition"). (Doc. No. 15.) In the Petition, Petitioner alleges (1) that the imposition of a gang sentencing enhancement violated his due process rights, and (2) that the trial court erred when it allowed the gang expert to testify about Petitioner's intent. (Id. at 6-7.)

DISCUSSION

On November 29, 2012, Magistrate Judge Gallo issued a R & R recommending that the Court grant Respondents' motion to dismiss and deny the Petition. (Doc. No. 24.) The district court may accept, reject, or modify the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). If neither party objects to the findings and recommendations of the magistrate judge, the district court is not required to make a de novo determination. See id.

I. Statute of Limitations

In their motion to dismiss, Respondents argue that the Petition should be dismissed because it is barred by the applicable statute of limitations. (Doc. No. 17 at 2-5.) Because the Petition was filed after April 24, 1996, it is governed by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 336 (1997). Pursuant to 28 U.S.C. § 2244(d)(1), a one-year period of limitation applies to an application for a writ of habeas ...


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