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Wessels v. Gower

United States District Court, Ninth Circuit

October 18, 2013

BARNES B. GOWER, Respondent.


GONZALO P. CURIEL, District Judge.


Petitioner Jeremy Allen Wessels, a state prisoner proceeding pro se and in forma pauperis with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenges his conviction in San Diego County Superior Court Case No. SCE284009 for first degree murder [ECF No. 1].[1]

The Court has reviewed the pertinent portions of the record and has considered the legal arguments presented by both parties. For the reasons discussed below, the Petition is DENIED. The Court GRANTS a certificate of appealability as to claim two in the petition.[2]


This 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); see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The following facts are taken from the California Court of Appeal opinion:

Murder and 1994 Investigation
On September 16, 1994, a fire captain responded to David Binno's apartment at approximately 10:00 p.m. The apartment door was slightly askew, lights inside the apartment were turned off, and very loud music was playing inside. Binno was lying on the floor in a large pool of blood, and his brain tissue was visible; therefore the fire captain concluded Binno was deceased.
There was no evidence of a break-in at Binno's apartment. Detectives recovered from the scene two spent casing that came from the same gun. The results of DNA and fingerprint tests at Binno's apartment did not match either Wessels or Franswa Shammam, Wessels's friend. Detectives found no evidence of blood in or on Shammam's pickup truck.
Haitham Marcos testified Binno had helped him repair Marcos's car until approximately 3:45 p.m. that day, when Binno had to go home to take care of a phone bill payment from Wessels. The parties stipulated the distance between Marcos's residence and Binno's residence was 4.1 miles by the most direct route; it would take approximately nine minutes to drive between the two residences directly, barring some unusual event such as an accident or construction.
Kristin Lybarger lived in Binno's apartment complex, and testified that she came home from work at around 4:00 p.m. that day. Binno's car was not in its parking stall, but instead a black pickup truck was parked there. However, at approximately 4:40 p.m., she saw Binno's car in its usual parking stall, and the black pickup truck was parked next to Binno's.
Kara Walter, who lived in an apartment just below Binno's, told detectives that between 4:25 p.m. and 4:30 p.m. that day, she heard about two or three people talking as they climbed the stairs to Binno's apartment. A few minutes later, the music in Binno's apartment was turned up excessively loud. As Walter was leaving home at approximately 4:30 that afternoon, she heard two "pops" that sounded like firecrackers come from Binno's apartment. She heard voices talking immediately afterwards. When Walter returned home at approximately 8:30 that night, the lights in Binno's apartment were turned off, and the music was still very loud. She called and complained to the apartment manager.
Detectives interviewed Wessels approximately three days after Binno's murder. He admitted that twice on the afternoon of the murder he went to Binno's apartment to pay his phone bill. Wessels claimed that at about 2:00 p.m., Binno's car was not parked in its usual stall; however, the second time, which was before 5:00 p.m., Binno's car was there. But Binno did not respond to Wessels's knocks on the apartment door either time.
Detectives repeatedly asked whether Shammam had accompanied him to Binno's apartment that afternoon, but Wessels was evasive: "I don't, I don't, want to talk about [Shammam], I don't, I don't talk to [Shammam], I don't, I don't, I don't even want to talk about [sic]. It has nothing to do with me and [Binno]. [Shammam] has nothing to do with me and [Binno]. I have, I have no idea." Wessels later responded to the same question by stating, "No, okay, well I don't know, I couldn't tell you, like I say, I couldn't say, I could not say yes, I couldn't say no I don't, you know I don't even know that."
Monica Bihouet's 1996 Interview with Detectives
Monica Bihouet Cervantes testified that she and Shammam had been dating since approximately 1991. A few days before September 16, 1994, Bihouet, Shammam and Wessels were together, and Shammam jokingly said they should kill Binno. In 1996, almost two years after Binno's death, Bihouet told detectives that Wessels and Shammam had joked about killing Binno, and Wessels had said that if Binno's girlfriend were there, she too would be killed. Bihouet also reported to police that around middle or late afternoon on the day of the murder, Shammam and Wessels, who both appeared recently showered, arrived at her house. Shammam told her they had just killed Binno. Shammam asked Bihouet to keep a bag that contained Binno's gold bracelet and necklace. Days later, at Shammam's request, Bihouet took the jewelry to Tijuana, Mexico, and had it melted. On September 27, 1994, Bihouet pawned the gold at a shop in San Ysidro, California.
Shortly after the killing, Shammam explained the circumstances surrounding it to Bihouet. Shammam said Binno had owed Wessels money, and Binno talked too much. Shammam and Wessels went to Binno's apartment, and first wrestled and joked around; later, Wessels grabbed Binno, and Shammam used Wessels's gun to shoot Binno twice in the head. They turned up the music loud so the gunshots would not be heard. Shammam said he had thrown away the gun afterwards.
When Bihouet spoke to detectives in 1996, she had recently ended her relationship with Shammam. She claimed she had not spoken to detectives about Shammam's involvement in the murder earlier because she was afraid he might kill her too. Shammam had once fired a gun in her presence because she had told him she wanted to break up with him.
At trial, during Bihouet's cross-examination, defense counsel asked if she had reported to police that Shammam "was dealing suitcases of cocaine." The prosecutor objected on relevance grounds. The defense attorney countered, "It's not being offered for the truth of the matter. It's offered to show bias. When a person goes down to the police and starts making lots of allegations that are unfounded, that goes to the person's credibility and bias." The court sustained the objection, finding the statement was prejudicial: "I just see all kinds of problems under [Evidence Code section] 352. It's involving a co-defendant... [T]here really is no effective way to cross-examine [Bihouet] on that question once it's out there before the jury." The court later confirmed its ruling and stated, "I find it's irrelevant, and it's also offered for the truth of the matter, that, in fact, he was in possession of suitcases of cocaine, and it doesn't deal with her credibility."
Other Evidence of Murder
Deputy medical examiner Mark Super performed an autopsy on Binno's body and concluded the cause of death was two gunshot wounds to the head, and the manner of death was homicide. Binno had no defensive wounds on his body.
Brian Kennedy, a crime scene reconstructionist, testified that Binno was on or just above the floor at the time he was shot both times. Further, based on the placement of Binno's left hand extending beyond his right side, it seemed likely that someone restrained Binno's hand and was pulling it across, thereby holding him down on the floor. Binno's body was not repositioned after he was shot.
Defense Case
William Chisum, a crime scene reconstructionist, disagreed with the People's expert's theory that someone had restrained Binno while another person shot him. Rather, Chisum testified someone rolled Binno's body onto his right side. Chisum also concluded Binno was on his knees when he was shot execution style.
Charles Merrit Jr., a criminalist employed by the San Diego County Sheriff's Department Regional Crime Laboratory, testified he agreed with Chisum's conclusion that no evidence showed how the victim got to the position when he was shot, and that he could not tell whether Binno was restrained prior to being shot.

(Lodgment No. 5 at 2-7.)


On December 24, 2008, the San Diego County District Attorney's Office filed an amended information (information) charging Jeremy Allen Wessels with one count of murder, a violation of California Penal Code (Penal Code) section 187. ( See Lodgment No. 1, vol. 1 at 0041-42.) The information also alleged Petitioner was armed with a firearm during the commission of the offense, within the meaning of Penal Code section 12022(a)(1). ( Id. ) Wessels was tried by a jury, which failed to reach a verdict, and a mistrial was declared. ( See Lodgment No. 1, vol. 6 at 1444.)

A second trial began on April 22, 2010. ( See Lodgment No. 9, vol. 1.) Wessels was convicted of first degree murder on May 6, 2010. (Lodgment No. 1, vol. 5 at 1380.) The jury also found true the gun allegation. ( Id. ) Wessels was sentenced to twenty-five years-to-life for the murder, plus one year for the firearm allegation. (Lodgment No. 1, vol. 6 at 1408-09; Lodgment No. 9, vol. 12 at 1165.)

Wessels appealed his conviction to the California Court of Appeal for the Fourth Appellate District, Division One. (Lodgment Nos. 2-4.) The state appellate court upheld his conviction but directed the trial court to modify the abstract of judgment to reflect the proper custody credits. (Lodgment Nos. 5-6.) Wessels then filed a petition for review in the California Supreme Court. (Lodgment No. 7.) The California Supreme Court denied the petition without citation of authority. (Lodgment No. 8.)

On April 4, 2013, Wessels filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. (ECF No. 1.) Respondent filed and Answer and Memorandum in Support of the Answer on June 10, 2013. (ECF No. 9.) Wessels filed a Traverse on June 24, 2013. (ECF No. 11.)


Wessels raises three claims in his Petition. First, he contends the exclusion of defense witness James Smith violated his federal constitutional right to present a defense. (Pet. at 6-17, ECF No. 1; Traverse at 5, ECF No. 11.) Second, he argues the fourteen-year delay in filing the charges against him violated his federal constitutional rights to due process. (Pet. at 18-25, ECF No. 1; Traverse at 2-4, ECF No. 11.) Third, he claims that evidence relating to the testimony of Monica Bihouet was improperly excluded, violating his federal constitutional rights. (Pet. at 26-35, ECF No. 1; Traverse at 6-8, ECF No. 11.)

Respondent addresses Wessels claims out of order for ease of reference. As to Wessels's first claim, that the delay in charging him violated his due process rights, Respondent argues the state court's adjudication was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Respondent argues claims one and three, regarding admission of evidence at Wessels's trial, do not state a federal question, and, in any event, the state court's denial of those claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Mem. of P. & A. Supp. Answer at 5-38, ECF No. 9.) In the interest of simplicity, the Court will address Wessels's claims in the order presented by Respondent.

A. Standard of Review

This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).

A federal habeas court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the "unreasonable application" clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be "objectively unreasonable." See Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning, " federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent, ]" id., the state court decision will not be "contrary to" clearly established federal law. Id. Clearly established federal law, for purposes of § 2254(d), means "the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision." Andrade, 538 U.S. at 72.

B. Pre-Complaint Delay (Claim Two)

Binno was murdered in 1994, but charges were not brought against Wessels and his co-defendant, Franswa Shammam, until 2008. Although police suspected Wessels and Shammam were involved in Binno's murder in 1994, it was not until Bihouet came forward with her information in 1996 that any evidence linked Wessels to the crime. Law enforcement delayed another twelve years before charging Wessels and Shammam with Binno's murder. This delay was the subject of lengthy pre- and post-trial motions and hearings. ( See Lodgment No. 1, vol. 3 at 568 - vol. 5 at 1259; Lodgment No. 10, vol. 2-3.) The state court ultimately concluded that Wessels had suffered some prejudice as a result of the delay, but concluded that, on balance, the ...

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